The legal finger-pointing continues over damage caused by the construction of the UBC Okanagan tower, with more companies possibly being added as defendants in a proposed class-action lawsuit.
Construction of the new UBC Okanagan tower began last year at the the corner of Doyle Avenue and St. Paul Street, with excavation for the proposed four-storey underground parking garage. But damage to nearby buildings was soon noticed after excavation began.
Since then, the nearby legion has been forced to close its doors due to damage, a building across Doyle Ave. has been torn down after large cracks appeared in its walls, and 84 residents who had found affordable and accessible housing at Hadgraft Wilson Place have been forced from their homes for the past eight months.
The residents of Hadgraft Wilson and Eight Spaces Group – which ran a coworking space in the now demolished building – filed a lawsuit in May against UBC Properties Investments Ltd., Doyle Street Properties, the City of Kelowna, GeoPacific Consultants and a number of other consulting firms and unnamed engineers and contractors.
The plaintiffs are looking to get the lawsuit certified as a class-action suit and while the expected timeline in the case is not clear, lawyers will be meeting to discuss the matter in Kelowna court later this month.
Adding new defendants
On Thursday, the plaintiffs filed an application to add Bauer Foundations Canada, Green Infrastructure Partners, Kichton Contracting and EXP Services as defendants.
The application says Kichton was the excavation contractor for the development, while EXP was hired by UBC Properties to review GeoPacific's geotechnical investigation and shoring design prior to the work getting underway.
The plaintiffs' application comes after defendant GeoPacific alleged in its own response to the lawsuit in October that Bauer and Green Infrastructure Partners should be held responsible for the damage caused.
GeoPacific says it was hired by UBC Properties to “provide certain geotechnical engineering services” for the project, creating a Nov. 2, 2021 report.
“The site-specific investigation revealed that that the soils were highly compressible under heavy loading and unsuitable to support heavy tower loads,” GeoPacific says it wrote in its report.
“Given the subsurface conditions, the use of deep foundations with piles would be required ... Some ground vibrations were to be expected as a result of pile installation; however, the level would be dependent on the pile type, and adjacent buildings required evaluation to determine their susceptibility to damage.”
'Did not have the expertise required'
GeoPacific says UBC Properties retained Bauer as the project's shoring contractor, which then subcontracted GIP to provide anchor installation services.
In February 2023, in consultation with Bauer, GeoPacific says it provided shoring design drawings for the development, and the shoring installation and excavation began in the spring of 2023.
“The soil conditions were challenging, and it became apparent over the course of construction that GIP did not have the expertise required to effectively complete anchor installation,” GeoPacific alleges.
“GeoPacific provided a number of recommendations to Bauer and GIP with respect to the anchor installation methodology. In consultation with UBC Properties, modifications were also made to reduce the excavation depths to a two level parkade.”
Additionally, GeoPacific says a “buttress berm” was built adjacent to Hadgraft Wilson Place in February and March of 2024 to “reduce any settlement damage to adjacent properties.”
“GeoPacific warned UBC Properties of the risk of settlement damage to adjacent properties and provided appropriate recommendations to deal with the challenging soil conditions encountered during excavation and shoring,” GeoPacific states in its response.
As such, GeoPacific named Bauer and GIP as third parties in the suit, claiming the two companies should be liable for any damages that may be attributed to GeoPacific.
GeoPacific alleges Bauer failed to perform the shoring work properly while GIP failed to perform the anchor installation “in accordance with the opinions, recommendations and instructions of GeoPacific and qualified consultants.”
None of the allegations made in the lawsuit or the subsequent responses have been tested in court. Neither Bauer nor GIP have filed any responses to the allegations made by GeoPacific.
Magnitude of damage unknown
Last month, the City of Kelowna filed its own formal response to the lawsuit, denying any responsibility for the damage that's been caused. UBC Properties has yet to file a formal response to the lawsuit.
While the city says it believes the “construction activities” at the UBC Okanagan tower site caused the damage to neighbouring buildings, it says it doesn't know the “precise mechanisms, types and magnitude” of the damage that the excavation has caused. Despite this, construction at the site carries on.
While the city says it was first made aware of the damage on Nov. 27, 2023, the residents of Hadgraft Wilson Place say in their lawsuit that beginning July 2023 the defendants, including the city, were "advised repeatedly that Hadgraft Wilson Place was experiencing structural and other damage as a result of the excavation and construction activities."
“In or around July 2023, the defendants, or each of them knew or ought to have known that the shoring wall that was part of UBCO Development construction site was unstable and the excavation and construction work on the Lands posed a danger to adjacent properties,” the suit claims.
“However, they failed to stop construction and excavation activities on the Lands or warn the plaintiffs and Class members of the resultant damage and the dangerous conditions to the surrounding properties described herein.”
Last month, residents of Hadgraft Wilson Place told Castanet they just want to go back home, with many paying double or triple what they were paying before. Castanet reached out to the City of Kelowna to see if a determination has been made whether or not the residence will ever be habitable again, but the city did not respond by publication time.
