THE QUEENS BENCH

WINNIPEG CENTRE

BETWEEN:

TRIPLE B STADIUM INC.,

plaintiff,
- and RAYMOND S.C. WAN ARCHITECT INC., and STUART
OLSON CONSTRUCTION LTD.,
defendants.
STATEMENT OF CLAIM

TO THE DEFENDANTS

A LEGAL PROCEEDING HAS BEEN COMMENCED AGAINST YOU by

the plaintiff. The claim made against you is set out in the following pages.
IF YOU WISH TO DEFEND THIS PROCEEDING, you or a Manitoba
lawyer acting for you must prepare a Statement of Defence in Form 18A prescribed
by the Queens Bench Rules, serve it on the plaintiffs lawyer or, where the plaintiff
does not have a lawyer, serve it on the plaintiff, and file it in this Court Office, WITHIN
TWENTY DAYS after this Statement of Claim is served on you, if you are served in
Manitoba.
If you are served in another province or territory of Canada or in the
United States of America, the period for serving and filing your Statement of Defence
is forty days. If you are served outside Canada and the United States of America, the
period is sixty days.

-2IF YOU FAIL TO DEFEND THIS PROCEEDING, JUDGMENT MAY BE

GIVEN AGAINST YOU IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO
YOU.

March 4, 2015

Issued by
Deputy Registrar
100c - 408 York Avenue
Winnipeg MB R3C 0P9

TO:
RAYMOND S.C. WAN ARCHITECT INC.
c/o Pitblado LLP
2500-360 Main Street
Winnipeg, MB R3C 4H6
Attn: Richard S. Literovich
STUART OLSON CONSTRUCTION LTD.
50 Fultz Boulevard
Winnipeg, MB R3Y 0L6
CLAIM

1.

The plaintiff claims:

(a)

special damages;

(b)

damages in an amount to be proven at the trial of this action to

indemnify the plaintiff for the cost of remedial work as hereinafter
described;

(c)

general damages;

-3(d)

pre-judgment and post-judgment interest in accordance with The Court

of Queens Bench Act, CCSM c. C280;

(e)

costs on a lawyer-client basis; and

(f)

such further and other relief as the nature of this case may require and
this Honourable Court may deem just.

2.

The plaintiff, Triple B Stadium Inc. (Triple B), is a corporation duly

incorporated pursuant to the laws of Manitoba. Prior to July 25, 2014, Triple B was
named BBB Stadium Inc.

3.

Triple B was incorporated to represent the interests of public

stakeholders, namely the University of Manitoba, The City of Winnipeg, the Province
of Manitoba, and the Winnipeg Football Club, in a stadium facility commonly known
as Investors Group Field (IG Field) constructed at the University of Manitoba
Campus, in Winnipeg.

4.

The defendant, Raymond S.C. Wan Architect Inc. (Wan), is a

corporation duly incorporated under the laws of Manitoba, having its registered office
in Winnipeg and, at all material times to this action, carried on an architecture
business.

-45.

The defendant, Stuart Olson Construction Ltd. (Stuart Olson), is a

corporation duly incorporated pursuant to the laws of Alberta, and is registered to

carry on business in Manitoba as a general contractor. Stuart Olson, formerly known
as Dominion Construction Company Inc. (DCCI) and then Stuart Olson Dominion
Construction Ltd. (SODCL), is the successor in right, title, and interest to DCCI and
SODCL and is therefore responsible at law for the acts and omissions of DCCI and
SODCL.

6.

IG Field is a stadium facility located at 315 Chancellor Matheson Road

in Winnipeg which operates as a home for the Winnipeg Football Club and the
University of Manitoba athletic program.

7.

Triple B leases the land located at 315 Chancellor Matheson Road from

the University of Manitoba for the purposes of developing, constructing and operating
IG Field.

8.

On or about December 15, 2010, Triple B and Wan entered into a

Contract for Architectural Services (the Architectural Contract) whereby Wan

agreed, for valuable consideration, to provide the design for all aspects of IG Field in
accordance with the Architectural Contract and the schedules thereto.

-59.

Pursuant to the Architectural Contract, at all material times, Wan was

responsible for planning, overseeing, and co-ordinating all design, architectural, and
engineering activities associated with the design of IG Field.

10.

The design and construction of the IG Field is hereinafter referred to as

the Project.

11.

It was an express, or alternatively, an implied term and condition of the

Architectural Contract and Wan thereby agreed that:

(a)

the materials and equipment used in the Project would:

(i)

conform to the specifications and drawings forming part of the

Architectural Contract;

(b)

(ii)

be fit and sufficient for the purpose intended;

(iii)

be of merchantable quality; and

(iv)

be of good workmanship and free from defects;

the work performed or services provided by Wan or by any of its

employees, agents or sub-contractors would:

-6(i)

conform to the specifications and drawings forming part of the

Architectural Contract;

(c)

(ii)

be fit and sufficient for the purpose intended; and

(iii)

be of good workmanship and free from defects;

Wan would exercise all reasonable care, skill, diligence, and

competence as the designer of IG Field;

(d)

Wan would ensure that the design of IG Field met all applicable
standards and complied with all relevant building and safety codes;

(e)

Wan would ensure that the design of IG Field would be carried out in
accordance with the plans and specifications attached to and forming
part of the Architectural Contract; and

(f)

Wan would ensure that all workmanship on IG Field was done in a

good and workmanlike manner and in accordance with applicable
building standards, codes, and practices.

12.

On or about December 17, 2010, Triple B and Stuart Olson (then known

as DCCI) entered into a Guaranteed Maximum Price with Savings Construction

Management Contract (the Construction Contract). Pursuant to the Construction

-7Contract, Triple B was designated as the Owner and Stuart Olson was designated
as the Construction Manager and agreed, among other things, that Stuart Olson:

(a)

would do and fulfill everything indicated under the Contract Documents

(as defined in the Construction Contract);

(b)

would have total control of the Work (as defined in the Construction
Contract) and would effectively direct and supervise the Work so as to
ensure conformity with the Contract Documents;

(c)

would be solely responsible for construction means, methods,

techniques, sequences, and procedures and for co-ordinating the
various parts of the Work under the Construction Contract; and

(d)

would be responsible for the proper performance of the Work to the

extent that the design and the Contract Documents permit such
performance.

13.

It was an express, or alternatively, an implied term and condition of the

Construction Contract and Stuart Olson thereby agreed that:

(a)

the materials and equipment used in the Project would:

-8(i)

conform to the specifications and drawings forming part of the

Construction Contract;

(b)

(ii)

be fit and sufficient for the purpose intended;

(iii)

be of merchantable quality; and

(iv)

be of good workmanship and free from defects;

the work performed or services provided by Stuart Olson or by any of its

employees, agents or sub-contractors would:

(i)

conform to the specifications and drawings forming part of the

Construction Contract;

(c)

(ii)

be fit and sufficient for the purpose intended; and

(iii)

be of good workmanship and free from defects;

Stuart Olson would exercise all reasonable care, skill, diligence, and
competence in the construction of IG Field;

(d)

Stuart Olson would ensure that the construction of IG Field met all
applicable standards and complied with all relevant building and safety
codes;

-9(e)

Stuart Olson would ensure that the construction of IG Field would be

carried out in accordance with the plans and specifications attached to
and forming part of the Construction Contract; and

(f)

Stuart Olson would ensure that all workmanship on IG Field was done
in a good and workmanlike manner and in accordance with applicable
building standards, codes, and practices.

14.

On or about May 24, 2013, Wan certified that the Project was

substantially completed in accordance with the Architectural Contract and the

Construction Contract and provided Triple B with a Certificate of Substantial
Performance within the meaning of The Builders Lien Act, CCSM c. B91.

15.

In the course of designing IG Field for the use of Triple B, Wan owed

Triple B a duty of care to perform and supervise the design of IG Field in a good and
workmanlike manner and to exercise the degree of care, skill, diligence and expertise
in the performance of the design of IG Field as would be expected from a competent
architect.

16.

Particulars of the duty of care owed by Wan include the duty to:

(a)

ensure that the materials and equipment used in the Project:

- 10 (i)

conformed to the specifications and drawings forming part of the

Architectural Contract and the Construction Contract;

(b)

(ii)

were fit and sufficient for the purpose intended;

(iii)

were of merchantable quality; and

(iv)

were of good workmanship and free from defects;

ensure that the work performed or services provided by them or by any

of their employees, agents or sub-contractors:

(i)

conformed to the specifications and drawings forming part of the

Architectural Contract and the Construction Contract;

(c)

(ii)

were fit and sufficient for the purpose intended; and

(iii)

were of good workmanship and free from defects;

engage, instruct and/or assign experienced and appropriate persons to

perform design/architectural and engineering services on the Project;

(d)

provide design/architectural and engineering services in accordance

with approved and accepted industry standards and in accordance with
the terms and specifications of the Architectural Contract;

- 11 (e)

properly plan, manage and control the work and design/architectural

and engineering services performed and materials supplied for the
Project;

(f)

exercise all reasonable care, skill, diligence and competence as the

designer/architect of IG Field;

(g)

ensure that the design/architecture and engineering of IG Field met all

reasonable standards and complied with all relevant building and safety
codes;

(h)

ensure that the design/architecture and engineering of IG Field was

carried out in accordance with the plans and specifications attached to
and forming part of the Architectural Contract and the Construction
Contract; and

(i)

ensure that all design/architectural and engineering workmanship on IG

Field was done in a good and workmanlike manner and in accordance
with recognized building standards, codes, and practices.

17.

In the course of constructing IG Field for the use of Triple B, Stuart

Olson owed Triple B a duty of care to perform and supervise the construction of IG
Field in a good and workmanlike manner and to exercise the degree of care, skill,

- 12 diligence and expertise in the performance of the construction of IG Field as would be

expected from a competent contractor.

18.

Particulars of the duty of care owed by Stuart Olson include the duty to:

(a)

ensure that the materials and equipment used in the Project would:

(i)

conform to the specifications and drawings forming part of the

Architectural Contract and the Construction Contract;

(b)

(ii)

be fit and sufficient for the purpose intended;

(iii)

be of merchantable quality; and

(iv)

be of good workmanship and free from defects;

ensure that the work performed or services provided by it or by any of

its employees, agents or sub-contractors would:

(i)

conform to the specifications and drawings forming part of the

Architectural Contract and the Construction Contract;

(ii)

be fit and sufficient for the purpose intended; and

(iii)

be of good workmanship and free from defects;

- 13 (c)

engage, instruct, and/or assign experienced and appropriate persons to

perform construction services on the Project;

(d)

provide construction services in accordance with approved and

accepted industry standards and in accordance with the terms and
specifications of the Construction Contract; properly plan, manage and
control the work and services performed and materials supplied for the
Project;

(e)

exercise all reasonable care, skill, diligence, and competence as the

Construction Manager for the construction of IG Field;

(f)

ensure that the construction of IG Field met all applicable standards

and complied with all relevant building and safety codes;

(g)

ensure that the construction of IG Field was carried out in accordance

with the plans and specifications attached to and forming part of
Construction Contract; and

(h)

ensure that all workmanship on IG Field was done in a good and

workmanlike manner and in accordance with applicable building
standards, codes, and practices.

- 14 19.

Wan and Stuart Olson, and each of them, knew or ought to have known

that Triple B was relying upon them to perform their services in a good and
workmanlike manner and in accordance with their duties and that their failure to do so
would result in loss and damage to Triple B.

20.

Triple B says that Wan, or their employees, agents or subcontractors,

breached the Architectural Contract and/or the duty of care owed and was negligent
in designing IG Field and failed to perform their services in a good and workmanlike
manner and further failed to exercise the degree of care, skill and expertise in the
performance of those services as would be expected from a competent
designer/architect of such buildings. The particulars of the breach of contract, breach
of the duty of care, and negligence include:

(a)

failing to ensure that the materials and equipment used in the Project
would:

(i)

conform to the specifications and drawings forming part of the

Architectural Contract and the Construction Contract;

(ii)

be fit and sufficient for the purpose intended;

(iii)

be of merchantable quality; and

(iv)

be of good workmanship and free from defects;

- 15 (b)

failing to ensure that the work performed or services provided by them

or by any of their employees, agents or sub-contractors would:

(i)

conform to the specifications and drawings forming part of the

Architectural Contract and the Construction Contract;

(c)

(ii)

be fit and sufficient for the purpose intended; and

(iii)

be of good workmanship and free from defects;

failing to engage, instruct and/or assign experienced and appropriate

persons to perform design/architectural and engineering services on
the Project;

(d)

failing to provide design/architectural and engineering services in

accordance with approved and accepted industry standards and in
accordance with the terms and specifications of the Architectural
Contract and the Construction Contract;

(e)

failing to properly plan, manage and control the work and

design/architectural and engineering services performed and materials
supplied for the Project;

- 16 (f)

failing to exercise all reasonable care, skill, diligence and competence

as the designer/architect of IG Field;

(g)

failing to ensure that the design/architecture and engineering of IG Field

met all reasonable standards and complied with all relevant building
and safety codes;

(h)

failing to ensure that the design/architecture and engineering of IG Field

was carried out in accordance with the plans and specifications
attached to and forming part of the Architectural Contract and the
Construction Contract; and

(i)

failing to ensure that all design/architectural and engineering

workmanship on IG Field was done in a good and workmanlike manner
and in accordance with recognized building standards, codes, and
practices.

21.

Triple B says that Stuart Olson, or their employees, agents or

subcontractors, breached the Construction Contract and/or the duty of care owed and
was negligent in constructing IG Field and failed to perform their services in a good
and workmanlike manner and further failed to exercise the degree of care, skill, and
expertise in the performance of those services as would be expected from a

- 17 competent construction manager of such buildings. Particulars of the breach of

contract, breach of the duty of care, and negligence include:

(a)

failing to ensure that the materials and equipment used in the Project
would:

(i)

conform to the specifications and drawings forming part of the

Construction Contract;

(b)

(ii)

be fit and sufficient for the purpose intended;

(iii)

be of merchantable quality; and

(iv)

be of good workmanship and free from defects;

failing to ensure that the work performed or services provided by it or by

any of its employees, agents or sub-contractors would:

(i)

conform to the specifications and drawings forming part of the

Construction Contract;

(ii)

be fit and sufficient for the purpose intended; and

(iii)

be of good workmanship and free from defects;

- 18 (c)

failing to engage, instruct, and/or assign experienced and appropriate

persons to perform design, architectural, engineering and construction
services on the Project;

(d)

failing to provide construction services in accordance with approved

and accepted industry standards and in accordance with the terms and
specifications of the Construction Contract;

(e)

failing to properly plan, manage and control the work and services
performed and materials supplied for the Project;

(f)

failing to exercise all reasonable care, skill, diligence, and competence

as the developer in the development, design and construction of IG
Field;

(g)

failing to ensure that the construction of IG Field met all applicable

standards and complied with all relevant building and safety codes;

(h)

failing to ensure that the construction of IG Field was carried out in

accordance with the plans and specifications attached to and forming
part of the Construction Contract; and

- 19 (i)

failing to ensure that all workmanship on IG Field was done in a good

and workmanlike manner and in accordance with applicable building
standards, codes, and practices.

22.

Both during the course of construction and after the occupation by Triple

B of IG Field, Triple B became aware of a range of serious issues at IG Field

evidencing the aforesaid breaches of contract, breaches of duty, and negligence of
the defendants, and each of them, that include the selection, application and
installation of materials, systems and methods utilized in the design and/or
construction of IG Field.

23.

Triple B says that there are a number of functional and operational

defects as well as construction and Building Code deficiencies concerning the design
and/or construction of IG Field, the particulars of which include, among other things:

(a)

lack of handicap accessible design relating to door openers and at suite

level;

(b)

replacement of guard railings in seating areas;

(c)

guard rails around roof top equipment lacking;

(d)

insufficient field exiting;

- 20 (e)

water infiltration into private suites;

(f)

water infiltration from North and South video board steel structure;

(g)

contractors construction deficiency list items not completed;

(h)

East crawlspace not backfilled;

(i)

gate canopy drainage issues;

(j)

rainwater leader drainage piping connection failures;

(k)

water migrating into the facility due to a compromised building

envelope;

(l)

water ponding on the North and South Concourse areas;

(m)

extensive Concourse slab cracking;

(n)

heating and insulation issues:

(i)

inadequate design to maintain original design temperature of 10

degrees Celsius in suite levels year-round;

(ii)

lack of thermal insulation, thermal break, and weather proofing

of suite level;

- 21 (iii)

lack of suitable thermal insulation throughout (Administrative

Building north wall, Administrative Building Floor, Pinnacle
Club);

(iv)

lack of enclosure of the East crawlspace under the

Administrative Building resulting in a cold floor slab through
winter;

(v)

lack of heat in all mechanical, sprinkler and electrical rooms that

function through all four seasons;

(vi)

lack of heat in concession area for cold weather operational use;

(vii)

lack of weather stripping of all doors;

(viii)

lack of heat tracing on piping exposed to freezing (sprinklers,

water and drainage);

(ix)

inadequate

Administrative

Building

HVAC

controls,

air

distribution, heat, and cooling;

(x)

inadequate consideration of mechanical systems winterization

design for entire facility;

- 22 (o)

lack of structural design capacity of Concourse slabs to satisfy venue

requirements for operational loading;

(p)

lack of positive floor system drainage to internal floor drains (Training

Room);

(q)

imbedded stair nosings design/installation poorly resolved;

(r)

poor coordination of building services - exit corridor in the basement

required the addition of a rated ceiling;

(s)

extensive sidewalk settlement around the perimeter of the facility;

(t)

water in dry pits housing backwater valves causing rusting of valves;

(u)

mould issues due to water migration into walls;

(v)

dangerous ice accumulation on sunshades;

(w)

no all-weather route past truck access to field due to inadequate

clearance in original design;

(x)

exterior finishes subject to vandalism damage;

(y)

no access ladders to upper roof canopy hatches;

- 23 (z)

(aa)

exposed steel not painted or sealed;

sprinkler system design type for suite levels unsuitable due to lack of
heat;

(bb)

lack of fire proofing on the steel structure supporting the Administrative

Building roof, South Patio and North Concessions;

(cc)

inadequate entrance gate design;

(dd)

no hose bibbs in seating sections for pressure washing seats;

(ee)

no hose bibbs in landscaping areas;

(ff)

(gg)

no power provided for broadcast trucks;

inadequate design of domestic hot water boilers requiring early

replacement;

(hh)

(ii)

no strainers provided over roof canopy drains and trench drains;

no internal barrier free route between upper level football offices and
lower level football operations;

- 24 (jj)

Commissary not located in proximity to event areas; no all-weather

route between Commissary and event areas on east side of building;

(kk)

(ll)

(mm)

inadequate storage in building and around site;

inadequate provision of service elevators;

weight restrictions on all Concourse levels due to slab design and

composition. This limits weight and amount of product and weight that
can be moved around stadium, a problem for moving kegs of beer for
instance. Man lifts and equipment. are limited in their capacity;

(nn)

no incoming internal material handling and storage area was provided;

(oo)

poor layout of dock scissor lift controls; and

(pp)

no barrier free route from parking to Administrative Building entrance;

(collectively the Deficiencies)

24.

Triple B says that the Deficiencies were caused by the breach of

contract, breach of the duty of care, and negligence of Wan and Stuart Olson, and
each of them.

25.

Triple B has now rectified all Building Code issues as well as some of

the design and construction Deficiencies. To date, Triple B has been required to

- 25 spend in excess of $4.72 million dollars in order to repair and mitigate those
Deficiencies.

26.

Triple B says that it has suffered and continues to suffer loss and

damage due to the breaches of contract, breaches of the duty of care, and negligence
of the defendants, and each of them, including, among other things, the cost to
remedy certain of the Deficiencies, the particulars of which will be provided prior to
the trial of this action.

27.

Once the Deficiencies were discovered, Triple B demanded that the

defendants take steps to remedy the Deficiencies but the defendants have refused
and neglected and continue to refuse and neglect to remedy the Deficiencies. By
reason of the defendants and each of their breaches and their failure to remedy the
Deficiencies, Triple B claims damages representing the cost to remedy the
Deficiencies.

28.

As a result of the breaches of contract, breaches of the duties of care

and negligence of Wan and Stuart Olson, and each of them, Triple B claims damages
in respect of:

(a)

those losses, damages and expenses to remedy the Deficiencies;

(b)

the cost of obtaining professional inspections and reports relating to

the Deficiencies and suggested remedial work;

- 26 (c)

the loss and damage sustained due to safety issues and additional time
spent to deal with attempts to remedy the Deficiencies; and

(d)

other losses, damages and expenses sustained by Triple B, the

particulars of which will be proven at the trial of this action.

29.

Triple B says that it will continue to incur further losses, damages and

expenses as a result of the defendants and each of their breaches, which losses,
damages, and expenses will be proven at the trial of this action.

30.

Triple B pleads and relies upon the Architectural Contract and the

Construction Contract which agreements will be referred to at the trial of this action.

31.

Triple B pleads and relies upon The Tortfeasors and Contributory

Negligence Act, CCSM c. T90.

32.

The plaintiff therefore claims as set forth in paragraph 1 herein.

33.
March 4, 2015

THOMPSON DORFMAN SWEATMAN LLP

Barristers and Solicitors
201 Portage Avenue, Suite 2200
Winnipeg MB R3B 3L3
Jeff Hirsch
204-934-2336

File No. CI 15-01THE QUEENS BENCH

WINNIPEG CENTRE

BETWEEN:

TRIPLE B STADIUM INC.,

plaintiff,
- and RAYMOND S.C. WAN ARCHITECT INC., and STUART
OLSON CONSTRUCTION LTD.,
defendants.

STATEMENT OF CLAIM

Thompson Dorfman Sweatman LLP

Barristers and Solicitors
201 Portage Avenue, Suite 2200
Winnipeg MB R3B 3L3
(Matter No. 0131174 JBH)
(Jeff Hirsch: 204-934-2336)
(Facsimile: 204-934-0509)
(E-mail: jbh@tdslaw.com)