COLCO

Nonsense v. Reality:
Comments on a proposed leaky condo class action lawsuit

By James Balderson, COLCO, 2001.05.02
COLCO: Coalition of Leaky Condo Owners
www.myleakycondo.com
JamesBalderson@myleakycondo.com

The recent announcement that Patrick Guy of Acheson & Company has filed a class action lawsuit dealing with leaky condos has received much publicity.

COLCO has received a number of requests for our comments about the legal action.

This document addresses, one by one, all the statements contained in a
full-page advertisement published in The Vancouver Sun, Business Section, April 28, 2001, on page E5, (“the ad”).  According to sources, “the ad” also appeared in other publications.
 
The authors of “the ad” are unknown at the time of writing.  Those who paid for “the ad” are unknown at the time of writing.  COLCO’s inquiries to learn the identities of these unknown persons and or corporations have gone unanswered to date.

For ease of reference the statements in “the ad” are numbered [1] to [31].

[1].  “To find the right answers we need to ask the right questions.”

We agree.

[2.]  “The BC construction industry has successfully constructed buildings for over 100 years.”

“The ad” does not mention thousands of failures.

[3.]  “The Barrett Commission would have you believe that 15 years ago developers, contractors and designers [architects and engineers] decided to discard years of experience and begin building leaky condos.”

I, James Balderson, attended all of the Barrett Commission hearings except one in Nanaimo and one in Victoria.  Never once did I hear Dave Barrett, the Commissioner, or his advisors, Robyn Allan and Peter Leask, make or ask anyone to believe statement [3], or any statement remotely close to it.  Nor could I find such a statement by the Commission in any of the Commission’s publications.

False, misleading and intentionally deceptive statements such as statement [3] in “the ad” are among the common tools of devious, dangerous, deceptive, and misleading propagandists.

[4.]  “Further, they want you to believe that every shoddy builder in Canada has apparently relocated to the lower Mainland of British Columbia.”

Statement [4] is pure propaganda and absurdly nonsensical.  It is certainly not based on the work of the Commission.

We know there are still lots of shoddy builders across Canada not building in BC.

Also, BC shoddy developers and builders of leaky rotten condos such as Bosa, Polygon and United Properties, are developing and building outside BC in Canada and the USA.

[5.]  “does that make any sense to you?”

No it doesn’t.  Why did you, whoever you are, dream it up?

[6.]  “1985 AMENDMENTS to the National building Code stipulated a sealed building envelope system uniform for all of Canada, but unsuitable to BC’s wet climate.”

The Commission asked many questions, on the public record, about this
assertion.

No evidence was brought forward to the Commission hearings in support of statement [6].

In short, the building code requires water to be kept on the outside of
buildings and not let into the wall systems.

The Commission asked representatives from the Urban Development Institute, including Scott Cressey, of Cressey Developments, builders of several leaky rotten condo complexes, about this assertion.

Speaking on behalf of himself as a developer and structural engineer, and on behalf of the Urban Design Institute, Scott Cressey went on the public record by saying the building code was not the problem causing leaky rotten condos.  (Barrett Commission of Inquiry, Part Two, Volume Two, March 2000, p. 49.)

[7.]  “The government of BC adopted these changes in spite of repeated warnings from a senior civil servant in the Building Standards Branch, who in 1987 correctly predicted the impending catastrophe.”

The government of BC adopted modifications to the Building Code, as it does from time-to-time, as part of the normal code development process which includes representatives from the BC residential construction industry.

The name of the former senior civil servant referred to in “the ad” is
James Currie.

COLCO was given to understand that James Currie was invited to attend Commission hearings and to answer questions from the Commission but refused to do so.

Furthermore, the Commission heard public testimony from qualified experts that every one of Mr. Currie’s points received attention during the code development process.

The matters raised by James Currie were fully reported by the Commission. They were not dismissed.  They were found wanting.

Copies of the “Currie letters” were widely circulated by the Greater Vancouver Home Builders Association as part of the industry’s propaganda campaign to discredit the Public Commission of Inquiry and to divert attention from defective design and construction by the industry.

The “Currie letters” and evidence pertaining to how the letters were dealt with are available in the Commission’s report as part of the public record.

In addition, COLCO has documented many cases of leaky rotten condos built before the so-called “cause” espoused by Currie and the industry.

[8.]  “In spite of attempts to blame an entire industry for shoddy construction practices, evidence continues to point to a flawed building code.”

What evidence?  Where is it?

Why won’t you, whoever you are, let us examine the evidence?

Why don’t you, whoever you are, provide full disclosure to the owners of leaky rotten condos?

[9.]  “Even now, newly constructed schools built in strict accordance to the Building Code, are suffering the apparent problems that leaky condo owners know too well.”

As far as we know to date, all leaky condos and all leaky schools and all leaky hospitals, and the like, were not “built in strict accordance to the Building Code”.

The buildings were full of holes and not built to code: they leaked; they rotted; and they became mouldy.  No one has shown us otherwise.

[10.]  “you be the judge.”

We will.

We, the owners of thousands of leaky rotten condos have judged the industry’s performance from first hand experience.

The performance has been abysmally poor.

The industry designed and built thousands of leaky rotten condos.

Industry representatives want us, the owners of leaky rotten condos, to pay for the repairs, sit back and be quiet.

  Nonsense!

[11.]  “WE REPRESENT those members of the development, construction and design professions [architects and engineers] in BC that believe the Government owed a duty to warn that common construction practices would have to change as a result of code modifications.”

Who are you?

Why don’t you tell us your names?

Why don’t you name whom you represent?

Statement [11] claims the government should have warned the industry that their previous defective designs and faulty construction practices should be altered.

We agree everyone should have been warned by the government and the industry that the designs and construction practices used by the industry produced condos full of holes and that the condos would leak and rot.

The evidence of poor designs and shoddy building practices, in the form of faulty condos, was well known early on within the government and the industry.

We do not agree, on the basis of the evidence to date, that leaky rotten condos are the result of code requirements.
 

[12.]  “Government is not prepared to listen to any argument that might imply any responsibility to aggrieved homeowners even though its’ [sic] Commission recommended that Government make compensation.”

The compensation recommended by the Barrett Commission was to be a blend of money from the industry, the federal government and provincial government.

The industry has opposed paying any compensation.

The Federal Government has paid no compensation.

COLCO believes the compensation recommended by Barrett is unfair and inadequate for many owners who face repair bills far above the $25,000 and $35,000 caps recommended by Barrett.

The only compensation relief provided at the time of writing is a refund of Provincial Sales Tax (PST) calculated as the cost-to-repair X 40% X 7% for some, not all, leaky rotten condos.

The Federal Government continues to collect the Goods and Services Tax (GST) on the financial misery inflicted by the residential construction industry on the owners of leaky rotten condos.

[13.]  “The size and scale of the problem point directly to flawed National Building Code amendments put forward in 1985, introducing increasingly airtight construction for the sake of energy conservation.”

The size and scale of the leaky condo problem is indeed enormous. COLCO’s Leaky Rotten Condo List #7 dated October 2000 reported 884 complexes containing over 30,000 leaky rotten condos.

COLCO’s Leaky Rotten Condo List #8, in preparation now, will report more than 1000 leaky rotten complexes containing over 40,000 leaky rotten homes, with more still to be recorded.

The industry knew how to design and build dwellings that did not leak and rot long before 1985.  They failed to do it properly in BC long before 1985.

The industry continued to design and build defective housing long after 1985.

Bosa, Molnar, and Polygon, to name a few developers, built leaky rotten condos before 1985 and continued building them in the 1990’s. 

Developers and builders such as Bosa, Molnar, Polygon, Cressey, Intrawest, Intergulf-Cascadia, Redekop, Millenium, Casula, Henderson, MacLean, Narland, Adera, and United Properties, among others, are on COLCO’s Leaky Rotten Condo List.

The names of many architects appear repeatedly on COLCO’s Leaky Rotten Condo list as the designers of multiple leaky rotten condo complexes, starting before 1985 and continuing into the 1990’s.

The argument that leaky rotten condos are the result of energy conservation measures, as in statement [13] appears to be a red herring used to distract attention from multiple building code infractions.

[14.]  “Today, cities and municipalities continue to enforce a flawed building code that has little regard for BC’s damp, coastal climate.”

One of the reasons we purchased leaky rotten condos was because BC cities and municipalities did not enforce the building code.

Instead of conducting their own independent inspections, BC cities and municipalities relied on “letters of assurance” from design professionals, architects and engineers, “assuring” that the construction was in compliance with the code.

In other words, many designers were not only supposed to produce proper designs, they were put in charge of seeing to it that the buildings were constructed properly.

Investigations of leaky rotten condos revealed, many times, both inadequate designs and defective construction.

Design professionals [architects and engineers] had provided “letters of assurance” that all was well and good.

Cities and municipalities then issued an “occupancy permit” based on a “letter of assurance”.  The “occupancy permit” did not mean that the building was fit to be occupied.

Developers and builders then sold the defective leaky condos to thousands of unsuspecting buyers who were then stuck with fixing  leaks, rot and mould, instead of enjoying the promised good life in their new condo.

Let buyers be further warned today:  The developers, construction and design professions in BC state in “the ad” that even “Today [April, 28, 2000], cities and municipalities continue to enforce a flawed building code that has little regard for BC’s damp, coastal climate.”

On the face of their very own statement in “the ad”, the industry is now telling us that nothing has changed.

They are telling us in “the ad” that they are still designing and building leaky rotten condos and selling them to buyers.

Unfortunately, many of those buyers think otherwise, and purchase the condos supposedly built in accordance with a defective building code.

Industry promotions and advertising from the Government directed Homeowner Protection Office state that things have changed, that the industry does a better job, and that buyers should have confidence in the residential construction industry.

But why should potential buyers trust an industry that on one hand says “trust us again now, we’ve learned a lesson, we do not build leaky rotten condos anymore” while, at the very same time, advertising that nothing has changed, that the mistake -- a faulty code -- that created leaky rotten condos in the first place, according to them, is still being made today?

As far as we can tell to date, designers and developers and their sales agents do not inform potential buyers, prior to the sale of new condos, that the condo buildings were knowingly designed and constructed by the industry in accordance with a defective building code that will cause the new building to leak and rot.

Does any of this make any sense to you?  We say it is more garbled nonsense from an untrustworthy industry.

[15.]  “enough is enough.”

We agree.  We’ve had enough of this nonsensical propaganda!

Call an end to the propaganda war and send compensation to the owners of leaky rotten condos.

[16.]  “A CLASS ACTION LAWSUIT has been commenced to determine the cause and cure of the current crisis and to provide a basis for restitution to homeowners who have suffered.”

COLCO has evidence to support a belief that this lawsuit is not for the prime benefit of homeowners.

The prime beneficiaries of the proposed class action lawsuit will probably be the developers, construction and design professionals, and their insurance companies, which face hundreds of millions of dollars in claims and legal expenses, and who appear to be financing the legal expenses and advertisements like this ad.

The industry stands to gain by: confusing the true issues; delaying other legal actions; and delaying payments to the owners of leaky rotten condos from other lawsuits until this proposed class-action case is decided after appeals.  Appeals may have to go all the way to the Supreme Court of Canada, a process that might take ten years and still produce nothing for owners of leaky rotten condos.

[17.]  “We support homeowner efforts in finding a timely resolution to this crisis.”

What does this mean?  Does anyone know what the industry means by this statement?  They haven’t sent donations in support of COLCO.

Why don’t they simply pay the owners of leaky rotten condos for the repairs first and then sue the government on their own behalf in order to recover their costs?

The industry wants a “timely resolution” now because the market has crashed due to all the publicity about the leaky rotten condos they have designed, built and sold to date.

Why should we trust them now to do anything to help the owners of leaky rotten condos?

[18.]  “just the facts please.”

Yes, please!

[19.]  “OUR GOAL IS SIMPLE.  Firstly, we seek the cause and cure of the crisis and compensation for homeowners.”

The cause of the “crisis” is plain and simple.

The cause of the crisis for individual owners of leaky rotten condos was realizing that they owned leaky rotten condos and would have to pay for the repairs and finance legal action to try and recover a portion, sometimes a small portion, if anything, of the cost of repairing their leaky rotten condos.

The cause of the crisis for the developers, constructors and design professionals was media attention and publication of the number of leaky rotten condos the industry had designed, built and sold, thus destroying confidence in the residential construction industry and the real estate market, causing the market to crash.

Because of the publicity surrounding leaky rotten condos, built projects took a long time to sell, even at reduced prices.

Planned projects had to be put on hold.

Housing starts fell to a 40-year low.

Furthermore, the New Home Warranty Program, which was owned, controlled and directed by the Canadian Home Builders of British Columbia, collapsed like a fraudulent Ponzi scheme due to a flood of claims from the owners of new leaky rotten condos.

The BC Assessment Authority reduced the assessed value of built condominiums by hundreds of millions of dollars in accordance with market conditions, causing a tax shift to other property owners.

Owners of leaky rotten condos saw their savings going to pay for repairs and the equity in their leaky rotten condos turn negative.

The numbers of foreclosures and bankruptcies due to leaky rotten condos increased dramatically.

The Central Mortgage and Housing Corporation started using an Edmonton collection agency to hound debtors who walked away from their leaky rotten condos and insured mortgages.

Leaky rotten condos had been built and sold for many years with little or no public record of the shoddy performance of the industry.

Hush money was and is still being used to keep the shameful performance of the industry under wraps.

COLCO’s records show that, before and after 1985, developers, constructors and design professionals involved with leaky rotten condos settled financially with the owners and required the owners to sign confidentiality agreements, thus hiding problems with leaky rotten condos from the general public record.

The true record of BC’s design and construction industry was exposed for all to see by more and more tarps on more and more condo buildings combined with the continuing wide distribution of COLCO’s Leaky Rotten Condo List and continuing television coverage.

[20.] “Secondly, we want to restore confidence in the BC Construction industry by establishing the root cause of this calamity.”

The BC construction industry could restore confidence by paying for the repairs and by building condos that do not leak and rot.

“The ad” offers no compensation and raises further doubts about the quality of current construction.

“The ad” stands as more evidence that a continuing lack of confidence in the deceptive BC residential construction industry is prudent and well justified.

[21.]  “This class action does NOT seek restitution for the developers and contractors who have also been affected by a flawed building code.”

Why not?  Is it because you would have to put your names on the public record as plaintiffs?

[22.]  “The class action is restricted to frame construction buildings built between January 1, 1985 and January 1, 2000.”

Why the restriction?

A leaky rotten condo is a leaky rotten condo, no matter when it was built, isn’t it?

COLCO’s records show leaky rotten frame construction condo buildings built before and after 1985.

COLCO’s records also show concrete low-rise and concrete high-rise leaky rotten condos built before and after 1985.

[23.]  “If your home was built during this term, this action could have significant benefits to you.”

We note that the “significant benefits” are not spelled out.  This may be yet another false, misleading promise from the industry.

Industry promises of excellence in design and quality construction and the benefits of living in the industry’s new condos were false promises backed by a sham warranty and worth nothing once the leaks and rot began soon after purchase.

[24.]  “We are confident this class action will be certified based on the facts available.”

What facts are you, whoever you are, talking about?

Why don’t you, whoever you are, make them available to us?

Why didn’t you, whoever you are, make the facts available to the public
inquiry?

[25.]  “Once certification is achieved, names and damages of homeowners who wish to join the lawsuit will be solicited.”

In other words, there is no class action lawsuit.  Certification is not certain.  There may never be a class action lawsuit.

[26.]  “ ‘The Class Action lawsuit has been commenced by Mary Louise Kimpton on behalf of all owners affected by the failure of wall systems in British Columbia.’ ”

This statement is plainly false and misleading.

Mary Louise Kimpton has filed a lawsuit on behalf of herself, with the apparent financial help of unnamed persons and corporations from the development, construction and design professions who stand to gain from the lawsuit.

The lawsuit may or may not be certified as a class action lawsuit.

Statement [26] is also not true because the lawsuit is not filed on behalf of “ ‘all owners affected by the failure of wall systems in British Columbia.’ ”

The lawsuit, according to “the ad” “is restricted to frame construction buildings built between January 1, 1985 and January 1, 2000.”

Does this make any sense to you?  We say nonsense!

[27.]  “ ‘Patrick Guy of the firm Acheson & Company in Victoria represents the plaintiff.’ ”

The plaintiff is stated to be Mary Louise Kimpton, not “all owners” of leaky rotten condos.

[28.]  “ ‘They have a website at www.achesonco.com and an email address at leakycondos@acheson.com.’ ”

Yes, they, Acheson and Company, do have a website.

We advise owners of leaky rotten condos and other interested persons to visit Acheson’s website.

We encourage readers of this document to contact Patrick Guy and ask for more information, including answers to the questions raised by this document.

Patrick Guy has not responded to questions put to him by this writer.  Why not?

[29.]  “ ‘The class Action must be certified by the Court before proceeding to trial.’

Yes, it must.

[30.]  “ ‘That process usually takes 6-8 months.’

It could take much longer, and the case may not be certified.

[31.]  “ ‘Once a Class Action is certified, the Court must approve the arrangement to pay legal fees which in this case is expected to see at least 98% of the recovery go to the affected Owners’

In other words, the owners of leaky rotten condos could receive 98% of nothing from this proposed class action lawsuit which is apparently being financed by mystery members of the industry that developed, designed and built the leaky rotten condos.

Who is Mary Louise Kimpton, the named Plaintiff and the only person, other than lawyer Guy, identified in the ad?

COLCO has established that Mary Louise Kimpton owns a leaky rotten condo at 3931 Shelbourne Street, Victoria, BC.

COLCO has learned that the owners of the condo complex have received the results of at least two investigations of the leaking building envelope system.

The investigations of the complex, according to our sources, like many other investigations of leaky rotten condo buildings on Vancouver Island and the mainland, point to multiple building code violations as the cause of leaks and rot.

Confirmation of multiple building code violations is a common occurrence when leaky rotten condos are ripped apart for repairs.

The common building code violations found in leaky rotten condo complexes include foundation and structural design and construction defects, including missing anchor bolts, as well as multiple building envelope design and construction deficiencies.

Kimpton’s condo complex, according to our sources, has not been ripped open for repairs yet.  Many multiple building code infractions may be found and documented during the repair process.

For more information regarding thousands of leaky rotten condos in British Columbia visit COLCO’s website at www.myleakycondo.com.

COLCO’s website is linked to other websites documenting residential construction defects across North America which are similar to those in British Columbia.  (Use the US spelling – “mold” – when searching for US records.)

COLCO has concluded that bad builders build bad buildings wherever they are, and whatever the applicable building code says.  BC had too many and many of them are still building today.

Your comments, questions and concerns regarding this document can be directed to the author via email: James.Balderson@myleakycondo.com.