DATE: 20040628

DOCKET: C39033

COURT OF APPEAL FOR ONTARIO

FELDMAN, MACPHERSON and CRONK JJ.A.

B E T W E E N:

792132 ONTARIO INC.

Angus J. MacLeod,

for the appellant

Plaintiff (Appellant)

• and -

ERNEST A. CROMARTY INC., RONEY ENGINEERING LTD., and THREE TOWERS CONSTRUCTION LTD.

Bernie McGarva and Jeffrey S. Percival,

for the respondent,

Ernest A. Cromarty Inc.

Defendants (Respondents)

Heard: January 30, 2004

On appeal from the judgment of Justice Kenneth Pedlar of the Superior Court of Justice dated September 23, 2002 and the costs ruling of Justice Pedlar dated December 3, 2002.

CRONK J.A.:

I. Introduction

[1] This action arose from a dispute regarding the adequacy of the design and cons-truction of a parking garage.

[2] 792132 Ontario Inc. (“792 Inc.”) is a real estate developer and the owner of two high-rise condominium buildings and an associated parking garage in the City of Kingston that were built in the early 1990s. It acted as the general contractor and construction manager on the development of these facilities. To assist with the development project, it retained various consultants and subcontractors, including Roney Engineering Ltd. (“Roney”), a structural engineering firm; Ernest A. Cromarty Inc. (“Cromarty”), a professional architectural firm; Three Towers Construction Ltd. (“Three Towers”), a concrete forming contractor; and N.D. Garbutt (“Garbutt”), a mechanical engineer.

[3] The development project was carried out in phases. The last phase, which involved the construction of a multiple-storey parking garage, was completed in the fall of 1993. Cromarty acted as the architect for the project. It prepared the project design, including the design of the parking structure, as outlined in a site plan drawing approved by the City of Kingston. It also certified that the parking garage was designed in conformity with applicable architectural standards.

[4] Shortly after the parking garage was built, rainwater began to pond in various locations on the upper deck of the garage. 792 Inc. alleged that the ponding posed a long-term potential hazard to the structural integrity of the entire parking structure, as well as an inconvenience and safety risk to prospective occupants of the condominiums.

[5] In an effort to eliminate the ponding, 792 Inc. installed temporary tube drains on the upper deck. These drains removed part, but not all, of the ponded water and rainwater continued to accumulate on the deck. As a result, 792 Inc. sued Roney, Cromarty and Three Towers for negligence and breach of contract. It made no claim against Garbutt. As against Roney and Cromarty, 792 Inc. alleged, among other matters, that the designed slope of the upper deck of the parking garage was inadequate and not in compliance with accepted architectural and engineering practices and standards. As against Three Towers, it alleged that the garage was improperly constructed.

[6] Due to the bankruptcy of Three Towers, 792 Inc.’s claims against it were abandoned at trial. The action against Roney and Cromarty was tried in June 2002 before Pedlar J. of the Superior Court of Justice. The trial judge found no negligence by either Roney or Cromarty and dismissed the action. 792 Inc. appeals this dismissal as against Cromarty, having abandoned its appeal as against Roney. It also appeals the quantum of the trial judge’s costs award to Cromarty.

[7] 792 Inc. challenges the trial judge’s liability findings on two bases: first, that the trial judge erred in holding that there was no opinion evidence indicating that Cromarty failed to meet the applicable standard of care; and, second, that he erred in finding that the slope of the upper deck, as designed, was reasonable. In respect of its appeal of the trial judge’s costs award to Cromarty, 792 Inc. alleges that the hourly rates of counsel relied upon by Cromarty in calculating its costs of the action were not disclosed to the trial judge.

[8] For the reasons that follow, I would dismiss the appeal in its entirety.

II. Facts

[9] Cromarty was retained in 1990 to act as the architectural firm in the development of 792 Inc.’s condominium buildings and parking garage. It was responsible for the design, but not the construction, of the proposed facilities, including the garage. To that end, it prepared the site plan drawing that was submitted to the City of Kingston for approval.

[10] In its design for the project, Cromarty considered and provided for the necessity of slope in the upper deck of the parking garage to allow for water drainage. It designed the upper deck as a reinforced concrete slab sloping towards a catch basin that was located off the deck, on the west side of the structure. Ernest Cromarty testified at trial that it was his intention that the entire surface of the deck, once constructed, should have a gentle slope causing water to flow to the centre of the deck where it would then be channelled towards the catch basin. Essentially, as designed, the upper deck was to be constructed with sufficient positive slope so that all surface water on the deck would drain by gravity to the centre of the deck and from there to the catch basin.

(1) Cause of Deflections in the Deck

[11] Cromarty claimed at trial that the ponding problem on the upper deck of the parking garage was caused by errors or deficiencies in the construction, rather than in the design, of the deck. In his reasons, the trial judge reviewed the possible causative factors for the deflections in the concrete deck, as identified in the evidence. He found that the “most probable cause” for the deflections was slippage of the formwork (the supports for the concrete) during construction due to inadequate compacting of the fill placed around the pillars that supported the upper deck.

(2) Degree of Slope

[12] At the time of the construction of the upper deck, the Canadian Standards Association (the “CSA”) provided standards for use in the design and construction of parking structures. CSA Standard CAN/CSA-S413-87 (the “CSA Standard”), published in November 1987 as a mandatory national standard in Canada, set out minimum requirements for the structural durability of new parking structures. Section 7.6.1 of the CSA Standard read, in part:

7.6.1

The draining surface shall have sufficient slope, after long-term deflection, to provide positive flow of water to drains without ponding. There shall be no horizontal areas.

This CSA Standard was incorporated by reference into Ontario’s Building Code.

[13] In addition, the commentaries to the CSA Standard provided:

7.6.1

Long-term deflections of slabs and beams due to shrinkage, creep and thermal and moisture variation should not render drain placement ineffective. It is intended that the slope from any point on the floor to the nearest drain should be not less than 2%.

This commentary was not a mandatory component of the CSA Standard or Ontario’s Building Code at the time of the design and construction of 792 Inc.’s parking garage.

[14] The parties called evidence at trial concerning the degree of slope provided for in the design of the upper deck and on the question of whether the actual degree of slope in the deck, as constructed, was sufficient to provide adequate drainage.

[15] John A. Wilson (“Wilson”), an architect, testified on behalf of 792 Inc. that the design of the upper deck did not conform with acceptable architectural practice. He said:

The fact that it doesn’t drain properly, the fact that there’s very minimal drainage, and has created ponding and slipping hazards, I’m afraid I have to say that it’s not an acceptable architectural design.

[16] Wilson also testified that he measured percentage slopes of 0.192 percent and 0.213 percent in two separate areas on the upper deck, based on the site plan drawing prepared by Cromarty. In a report prepared by Wilson for 792 Inc. in March 2002, Wilson confirmed these measurements and opined that, “[T]he minimal slope in the concrete slab represents a breach of good and accepted architectural practice.” During Wilson’s trial testimony, the following exchange took place with 792 Inc.’s counsel:

Q: If the ponding occurs on the slab, does it matter what the slope is from the edge of a slab to the catch basin?

A: No.

Q: No. If there is deflection on the slab, and the slab won’t drain because of the deflection, is it good architectural judgment?

A: No, it is not.

[17] Ernest Cromarty testified at trial that his firm’s site plan drawing for the parking garage contemplated a slope of 1.72 percent from the corners of the deck to the catch basin, based on the original designed elevation and location of the catch basin. Later in his testimony Mr. Cromarty corrected this figure, indicating that the degree of slope, as designed, was 1.74 percent.

[18] Mr. Cromarty said that drains were not included in the design of the upper parking deck because, “They weren’t really required with a positive slope.”

[19] It is undisputed that the placement and design of drains on the upper deck were the responsibility of Garbutt, the mechanical engineering firm on the development project. Mr. Cromarty indicated that although Garbutt, who designed the catch basin, stipulated a 2 percent slope to the catch basin, he reduced the slope to 1.74 percent based on aesthetic considerations. In Mr. Cromarty’s opinion, this reduced slope was sufficient because it provided a “good, positive slope” from the highest point to the lowest point on the deck. Mr. Cromarty explained that if a 2 percent slope had been provided throughout the entirety of the upper deck, this would have required that the east end of the deck be constructed to about 5 feet above the window level of the adjacent floor of one of the condominium buildings:

[T]he attempt was, and was attained, is to provide a positive slope, but we wanted to reduce the slopes to maintain it being positive, but to make it aesthetically pleasing, and not disrupt the views [from] the apartment building.

[20] W. Carson Woods (“Woods”) was called at trial as an expert architectural witness on behalf of Cromarty. It was his opinion that Cromarty’s design of the parking deck met requisite architectural and engineering requirements, “because it had a positive slope, and no horizontal areas”. According to Woods, an architect who certifies a site plan drawing for a parking structure, as Cromarty did in this case, is obliged to show in the certified drawings the degree of slope proposed for the structure. Woods said that as long as the designed slopes were disclosed in the drawings and were sufficient to permit the flow of water for drainage, the established design standards as applicable in 1990 would be met.

[21] Woods testified that Cromarty’s site plan drawing for 792 Inc.’s parking garage stipulated a slope of 1.72 percent on the slab deck. However, he also acknowledged that, when measured from the east side to the west side of the deck, the designed deck slope was about .02 percent and that this was a “very, very shallow slope”. He thus confirmed that Cromarty’s design for the upper deck contemplated more than one slope, namely, a shallow slope on the deck itself and a steeper slope from the edge of the deck to the catch basin. During cross-examination on this issue, Woods gave the following evidence:

Q: And you would agree that, if the slope, the shallow slope on the slab, isn’t sufficient to get the water off it, then it doesn’t matter what the slope is from the edge of the slab to the catch basin?

A: Correct.

Q: So, it’s the slope on the slab that we’re concerned about when we look at the CSA Standard?

A: That’s right.

[22] The trial judge found that Cromarty provided for a 1.74 percent slope, as measured from the northwest corner of the upper deck to the catch basin. He also held:

[A]s constructed, the slope is 0.17 percent and…it will be necessary to provide drains in this deck to remove the ponding. There is also some issue as to whether there are, in effect, two slopes, being the gradual slope of the deck, and then a steeper slope from the deck towards the catch basin.

[23] The trial judge recognized that the slope on the upper deck, both as designed and as constructed, was below the minimum slope recommended in the commentaries to the CSA Standard in effect at the time of the design and construction of the deck. He also accepted the evidence at trial that slope is an architectural element in a design and that it is the responsibility of the architect to provide sufficient slope for drainage purposes. The trial judge concluded concerning 792 Inc.’s claim of inadequate slope design by Cromarty:

The standard of care required by a professional architect is that of ordinary competence. He is required to provide those services in accordance with the standards prevailing at the time the work was done and I cannot find that the plaintiff has established negligence on the part of the defendant Cromarty. To design a slope of 1.74 percent when the recommended minimum slope at the time was two percent does not in itself constitute negligence.

[24] As I discuss later in these reasons, however, the trial judge also concluded that the cause of the ponding on the upper deck of the parking garage was not the design of the slope on the deck but, rather, various construction defects.

(3) Remedy for Continued Ponding

[25] To remedy the continued ponding of water on the upper deck of the parking garage, the parties agree that permanent drains must be installed in the deck. They disagree, however, as to the nature and anticipated costs of the necessary remedial work.

(4) Costs Award at Trial

[26] By reasons dated December 3, 2002, the trial judge awarded Cromarty its costs of the action fixed in the amount of $94,146.50. This costs award is challenged by 792 Inc. on the basis that the hourly rates charged by Cromarty’s counsel allegedly were not disclosed to the trial judge.

III. Issues

[27] The issues on this appeal may be framed as follows: first, did the trial judge err in his appreciation of the expert evidence on the question of whether Cromarty breached the applicable standard of care in his design of the slope on the upper deck of the parking garage; second, did the trial judge err in concluding that the designed slope of the upper deck was reasonable; third, if the trial judge erred in either of these ways, is the error one which requires this court to interfere with the trial judge’s decision or order a new trial; and fourth, did the trial judge err in fixing the quantum of Cromarty’s costs of the action.

IV. Analysis

(1) Trial Judge’s Appreciation of the

Architectural Opinion Evidence

[28] In his reasons, the trial judge accepted Woods’ evidence that any positive slope greater than horizontal on the upper deck met the mandatory requirements of the CSA Standard that was in effect in 1990 when the deck was designed.

[29] In commenting on Woods’ evidence, the trial judge stated:

[Woods] stated that this building met the [Ontario Building Code] at the time that the permit was issued and that the ponding would have to be drained as a solution in this case but that the design was adequate. There was no opinion evidence called from any other architectural expert that the design was inadequate [emphasis added].

[30] I agree with 792 Inc.’s submission that the trial judge erred when he stated that there was no opinion evidence from an architectural expert that Cromarty’s design of the parking garage was inadequate. This statement by the trial judge ignores the testimony of Wilson, 792 Inc.’s architectural expert, who expressed the opinion that Cromarty’s design of the upper deck did not conform with acceptable architectural practice and that the minimal slope in the concrete slab of the upper deck constituted a breach of such practice. While it was open to the trial judge to prefer Woods’ opinion evidence over that of Wilson, the trial judge was mistaken when he indicated in his reasons for judgment that no architectural opinion evidence supporting 792 Inc.’s assertion of the inadequate design of the upper deck had been offered at trial. It is noteworthy, in this regard, that the trial judge’s reasons reflect no express consideration of any aspect of Wilson’s evidence.

[31] The issue, therefore, is whether the trial judge’s mistaken observation concerning the nature of the architectural opinion evidence adduced at trial constitutes reversible error in this case. For the reasons that follow, I conclude that the trial judge’s failure to advert to Wilson’s evidence is immaterial and that, in the end, neither Woods’ nor Wilson’s evidence concerning Cromarty’s design of the upper deck on the parking garage drove the outcome at trial.

(2) Designed Slope of the Upper Deck

[32] The trial judge found that a designed slope of 1.74 percent on the upper parking deck did not “in itself constitute negligence”. 792 Inc. argues that this implicit finding that the slope of the upper deck, as designed, was reasonable is fatally flawed because it was based on the degree of slope measured to the edge of the catch basin, rather than on the degree of slope on the deck itself. I would reject this argument.

[33] The trial judge’s reasons clearly indicate that he was alert to the degree of slope referenced in the commentaries to the CSA Standard as they existed in 1990. In making his finding concerning Cromarty’s designed slope of 1.74 percent, the trial judge expressly acknowledged that a 2 percent slope was contemplated in the commentaries to the CSA Standard. He also correctly recognized, however, that this suggested degree of slope was a recommendation only, and that it did not form part of the mandatory CSA Standard in 1990.

[34] Mr. Cromarty testified that his firm’s design of the upper deck contemplated a positive, gentle slope towards the centre of the deck, which would cause water to flow towards the centre and from that location to the catch basin. The 1990 version of the mandatory CSA Standard required draining surfaces to have sufficient slope “to provide positive flow of water to drains without ponding”. No specific degree of slope was stipulated in the CSA Standard. Messrs. Cromarty and Woods both testified that any positive slope greater than horizontal met the requirements of the CSA Standard.

[35] Thus, there was evidence before the trial judge upon which he could conclude that any positive slope in Cromarty’s design of the upper deck, whether measured on the deck itself, as 792 Inc. urges is appropriate, or from the farthest corner of the deck to the catch basin, as referenced by the trial judge, met the CSA Standard. 792 Inc.’s own expert witness, Wilson, acknowledged that, as designed, there was a positive slope on the upper deck of the parking structure. He testified that his measurements of the degree of slope on the deck were 0.192 percent and 0.213 percent. Both of these measurements, therefore, confirmed a degree of positive slope on the deck. There is no disagreement that the slope as measured from the deck to the catch basin was positive.

[36] It is also significant that 792 Inc., as the general contractor and construction manager for the condominium and parking garage development, did not object to or question the degree of slope contemplated by Cromarty’s design or inquire about drains for the deck, during either the design or the construction phases of the project. In the trial judge’s view, it was part of 792 Inc.’s role as the general contractor and construction manager to seek advice or clarification on such issues as design slope and drainage prior to the construction phase of the development project, when design or construction changes were still feasible. The evidence established that, as the general contractor, 792 Inc. controlled the construction of the project. Moreover, its representatives attended the site frequently to oversee the construction work and to deal with emerging problems. Yet, at no time, did they raise any concerns concerning the slope or drainage measures on the upper deck of the parking garage.

(3) Cause of the Ponding

[37] More importantly, however, I do not understand the trial judge’s decision to turn on the issue of the adequacy of the degree of slope provided for in Cromarty’s design of the upper deck. To the contrary, when the trial judge’s reasons are read as a whole, it is apparent that he concluded that the failure of the slope on the deck to provide sufficient drainage was caused not by the deck design but, rather, by steps taken by persons other than Cromarty during the construction phase of the development project. The trial judge held that:

(i) higher than expected deflections (sags in the concrete of the upper deck) occurred on the upper deck of the parking garage after its construction;

(ii) the ponding occurred in the deflections on the deck;

(iii) the “most probable cause” for the increased deflections was slippage of the formwork around the concrete during the construction phase of the development project;

(iv) the formwork slippage was itself likely caused by inadequate compaction of the fill placed around the pillars that supported the upper parking deck;

(v) unbeknownst to Cromarty, and at the request of Garbutt, the level of the catch basin was raised during construction, thereby reducing the actual slope to the catch basin from Cromarty’s designed 1.74 percent to 1.32 percent; and

(vi) contrary to Cromarty’s design of a gently sloping upper deck, the deck was constructed as a flat concrete plane without raised perimeters.

[38] 792 Inc. does not allege that these findings are tainted by palpable and overriding error. In view of these findings, it is my opinion that Wilson’s evidence concerning the alleged inadequacy of Cromarty’s design of the slope on the upper deck was largely irrelevant, as was the dispute at trial regarding the proper basis upon which to measure the degree of slope. Fundamentally, the trial judge’s liability findings were driven by construction, rather than design, considerations. He found that the probable cause of the deflections in the upper deck, which in turn caused the ponding, arose from construction errors. It is not suggested that Cromarty is responsible for these errors. Accordingly, I would dismiss 792 Inc.’s appeal from the dismissal of its action as against Cromarty.

(4) Trial Judge’s Costs Award

[39] 792 Inc. also seeks leave to appeal the costs award made by the trial judge in favour of Cromarty and, if leave be granted, appeals that award on the ground that it was based on discounted hourly billing rates by Cromarty’s counsel that were not disclosed to the trial judge.

[40] In oral submissions before this court, 792 Inc. did not pursue its appeal of Cromarty’s costs award. In my view, it was correct not to do so. Contrary to 792 Inc.’s submission that the discounted hourly billing rates of Cromarty’s counsel were not disclosed to the trial judge, the trial judge himself referred to these discounted rates in his reasons concerning his costs award when he observed that, “The solicitors for the defendant Cromarty have disclosed in their submissions on costs that their fees are billed at a reduced rate at the amount claimed in their Bill of Costs.” As the trial judge indicated in his reasons, he ultimately awarded Cromarty two-thirds of its claimed costs, as set out in its bill of costs as filed with the trial judge. On the record before us, there is no basis upon which to interfere with this award.

V. Disposition

[41] For the reasons given, I would dismiss the appeal. Cromarty is entitled to its costs of the appeal, fixed in the amount of $15,000, inclusive of disbursements and Goods and Services Tax.

RELEASED:

“JUN 28 2004” “E.A. Cronk J.A.”

“KNF” “I agree K. Feldman J.A.”

“I agree J.C. MacPherson J.A.”