CITATION: R. v. Wood, 2017 ONSC 3239

COURT FILE NO.: 7592/15

DATE: 2017-06-01

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

David Kirk/Marc Huneault, Counsel for the Crown

• and -

ROBERT G.H. WOOD

Robert MacRae, Counsel for the Defendant

Defendant

HEARD: September 6, 2016 – February 3, 2017

REASONS FOR JUDGMENT

[1] The accused, Robert George Wood, is charged under an indictment dated July 11, 2015 as follows:

1. Robert George Wood stands charged that he on or between the 25th day of September 2009 and the 23rd day of June 2012, at the City of Elliot Lake, in the said Region, did by criminal negligence cause the death of Lucie Aylwin, contrary to section 220(b) of the Criminal Code of Canada, and

2. Robert George Wood stands further charged that he on or between the 25th day of September 2009 and the 23rd day of June 2012, at the City of Elliot Lake, in the said Region, did by criminal negligence cause the death of Doloris Perizzolo, contrary to section 220(b) of the Criminal Code of Canada, and

3. Robert George Wood stands further charged that he on or between the 25th day of September 2009 and the 23rd day of June 2012, at the City of Elliot Lake, in the said Region, did by criminal negligence cause bodily harm to Jean-Marie Marceau, contrary to section 221 of the Criminal Code of Canada.

[2] The accused has entered pleas of not guilty to the aforementioned charges. This matter proceeded to trial on September 6, 2016 and the trial spanned some five months with the evidence ending on January 18, 2017. Submissions from counsel were received on January 31, February 1, 2, and 3, 2017. The matter was put over to July 24, 2017 for decision but the date for a decision was advanced to June 1, 2017.

FACTUAL BACKGROUND

[3] This case revolves around the partial collapse of the Algo Centre Mall (“the mall”) in Elliot Lake, Ontario on June 23, 2012. There is no dispute that the partial collapse of the Mall resulted in the deaths of Lucie Aylwin and Doloris Perizzolo and serious injuries to Jean-Marie Marceau.

[4] The mall and the hotel building attached to it was constructed in 1980 by Algocen Realty Holdings Limited, later called Algoma Central Properties. The mall was designed in 1979 by architect James W. Keywan and engineer John Kadlec of Beta Engineering.

[5] The mall is approximately 140,000 square feet in size. The mall is founded on rock which slopes down from west to east. There are three storeys in the mall, with the floors of the mall (in descending order) being the upper mall level, the lower mall level and the pick-up level. The unsheltered roof on the mall is used as a roof parking level for the parking of vehicles. The hotel rises four additional storeys above the parking level and has a mechanical room on top.

[6] The structure of the mall is a hybrid of steel frame and concrete panels. The steel framing is composed of steel columns and beams. Pre-cast concrete hollow slabs are arranged side by side to make up a slab that is supported by the steel framing.

[7] In 1999 Algoma Central Properties sold the mall to Elliot Lake Retirement Living and it was this entity that owned and managed the mall until 2005. In 2005, the mall was sold to Eastwood Mall Inc., which was a corporation owned solely by Bob Nazarian and operated by him. Eastwood Mall Inc., under the control and direction of Bob Nazarian, owned and operated the mall in Elliot Lake, Ontario from the date of purchase until the partial collapse of the mall on June 23, 2012.

[8] The partial collapse of the mall on June 23, 2012 was investigated by the Ontario Provincial Police. As part of the investigation, the OPP retained the services of NORR Limited, to conduct a forensic investigation into the cause of the collapse and parameters that influenced it. NORR Limited is a medium sized architect and engineering firm based in Toronto, Ontario. The lead person from NORR Limited that conducted the forensic investigation was Dr. Hassan Saffarini who was the manager of structural engineering at NORR Limited. Dr. Saffarini assembled a team to assist him, including concrete, metallurgical and corrosion specialists from Giatec, BMT Fleet Tech and the National Research Council of Canada.

[9] As a result of the forensic investigation conducted by NORR Limited, Dr. Saffarini issued a final report on March 8, 2013. The evidence is clear the mall leaked for an extensive period of time, actually from the day it was built. The uncovered parking deck was never properly waterproofed creating what Dr. Saffarini described as a “marine like environment” in the mall. The infiltration of water into the elements, particularly the structural steel led to corrosion which in turn led to a significantly depleted weld at the connection of one of the steel beams. When this connection failed the steel beam collapsed at one end leading to the partial collapse of the mall.

[10] In his report dated March 8, 2013, Dr. Saffarini makes note of the various inspections and reports pertaining to the condition of the mall from 1979-80 to 2012 and observes in his report that “steel corrosion went unnoticed or underestimated by most consultants who inspected the mall.”

[11] Two inspections referenced in the NORR Report dated March 8, 2013 were conducted by the accused Robert Wood, who was the president of MRW, M.R. Wright and Associates Co. Ltd. Consulting Engineers in Sault Ste. Marie, Ontario. On October 5, 2009, Mr. Wood inspected the mall and reported by a written report dated October 28, 2009. In that report Mr. Wood concluded “It is our opinion that our inspection revealed no visual structural concerns both with the structural steel or prestressed slabs”.

[12] Robert Wood conducted a further inspection of the mall in Elliot Lake, Ontario on April 12, 2012. That inspection generated an original written report dated May 3, 2012 from MRW and subsequent revised reports. The conclusion expressed in all reports resulting from the April 12, 2012 inspection was that “it is our opinion that the observed rusting at this time has not detrimentally changed the load carrying capabilities of the structure, and no visual signs of structural distress was observed”.

[13] At the time of the April 12, 2012 inspection conducted by Robert Wood at the mall and the May 3, 2012 report from MRW, the engineering licence of Robert Wood was suspended. Mr. Wood’s licence as a professional engineer was suspended for the period from November 16, 2011 to November 15, 2012 and was ultimately revoked as of November 16, 2012.

[14] Seventy-one days after the inspection of the mall in Elliot Lake, Ontario by Robert Wood and 51 days after the report of Mr. Wood to Eastwood Mall Inc., the uncovered roof parking deck at the mall partially collapsed resulting in the deaths of Lucie Aylwin and Doloris Perizzolo and serious injury to Jean-Marie Marceau.

THE LAW

[15] Robert Wood is charged with a negligence-based offence, namely, criminal negligence causing death and criminal negligence causing bodily harm contrary to ss. 220(b) and 221 of the Criminal Code of Canada, R.S.C. 1985, c. C-46 (the “Criminal Code”). Section 219(1) of the Criminal Code defines criminal negligence as follows:

Everyone is criminally negligent who

(a) in doing anything, or

(b) in omitting to do anything that it is his legal duty to do,

shows wanton or reckless disregard for the lives or safety of other persons.

Legal duty

[16] Section 219(2) of the Criminal Code indicates that the word “duty” in s. 219 means a duty imposed by law.

[17] The “duty” relied on by the Crown is the duty that Robert Wood had to the public as an engineer as set out in the Ontario Professional Engineers Act, R.S.O. 2990, c. P.28. Section 77 of the General Regulations Act, R.R.O. 1990, Reg. 941 (“Regulation”), sets out the Code of Ethics binding on an engineer, in part, as follows:

1. It is the duty of a practitioner to the public, to the practitioner’s employer, to the practitioner’s clients, to other members of the practitioner’s profession and to the practitioner to act at all times with,

(ii) Fidelity to public needs;

(v) Competence in the performance of any engineering services that are undertaken.

[18] Section 77 of the Regulation goes on to say that,

2. A practitioner shall,

(i) Regard the practitioner’s duty to public welfare as paramount.

[19] The court heard viva voce evidence from several witnesses in the engineering profession who described the engineer’s duty to the safety of the public as an over-arching duty in all the work that an engineer performs. Gerard McDonald is the Registrar of the Professional Engineers of Ontario. That organization regulates and governs the over 80,000 engineers in the Province of Ontario. Mr. McDonald testified that “the welfare of the public is paramount for a professional engineer: and that an engineer “should always keep the safeguarding of life, property and health at the top of his mind”.

[20] Mr. McDonald’s evidence as to the duty to the public owed by an engineer was confirmed by the evidence of Dr. Hassan Saffarini, author of the NORR Report. Dr. Saffarini referred to it as an “over-arching responsibility to the public” that requires an engineer to report on a safety concern he or she observes even if it is outside of the scope of work they are retained to perform. As Dr. Saffarini stated in his evidence, “I mean the responsibility by the Professional Engineers of Ontario Act is that if we walk into a building and we see something that is of concern, we have to report it – never mind the fact we are actually commissioned to comment on something that is of safety concern to the public”.

[21] This fiduciary duty extends to the Corporation as well by virtue of s. 20 of the Professional Engineers Act, which reads follows:

A corporation that holds a certificate of authorization has the same rights and is subject to the same obligations in respect of fiduciary, confidential and ethical relationships with each client of the corporation that exists at law between a member of the association and his client.

[22] The position of the Crown is that although Robert Wood was suspended in April and May of 2012 when he inspected and produced a report with respect to the mall, Mr. Wood was the president of MRW, the corporation that held the consulting engineer designation. Therefore, by virtue of s. 20 of the Professional Engineers Act, Mr. Wood carried the same public duty obligations as if he were a licenced engineer.

Criminal negligence – a modified objective test

[23] The court must bear in mind that Robert Wood is charged with a criminal offence and that a criminal standard must be applied, which includes the presumption of innocence and proof of the essential elements of the offence of criminal negligence beyond a reasonable doubt.

[24] The court must also bear in mind the distinction between civil negligence and criminal negligence. Criminal negligence applies a modified objective test that requires the Crown to establish a marked and substantial departure from the norm and the requisite mental state. This approach can be seen in the comments of the Supreme Court of Canada in R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, at paras. 6, 7 and 8:

[6] ...Unquestionably, conduct which constitutes a departure from the norm expected of a reasonably prudent person, forms the basis of both civil and penal negligence. However, it is important not to conflate the civil standard of negligence with the test for penal negligence. Unlike civil negligence, which is concerned with the apportionment of loss, penal negligence is aimed at punishing blameworthy conduct. Fundamental principles of criminal justice require that the law on penal negligence concern itself not only with conduct that deviates from the norm, which establishes the actus reus of the offence, but with the offender’s mental state. The onus lies on the Crown to prove both the actus reus and the mens rea. Moreover, where liability for penal negligence includes potential imprisonment, as is the case under s. 249 of the Criminal Code, the distinction between civil and penal negligence acquires a constitutional dimension.

[7] The modified objective test established by this Court’s jurisprudence remains the appropriate test to determine the requisite mens rea for negligence-based criminal offences. As the label suggests, this test for penal negligence “modifies” the purely objective norm for determining civil negligence. It does so in two important respects. First, there must be a “marked departure” from the civil norm in the circumstances of the case. A mere departure from the standard expected of a reasonably prudent person will meet the threshold for civil negligence, but will not suffice to ground liability for penal negligence. The distinction between a mere departure and a marked departure from the norm is a question of degree. It is only when the conduct meets the higher threshold that the court may find, on the basis of that conduct alone, a blameworthy state of mind.

[8] Second, unlike the test for civil negligence which does not concern itself with the mental state of the driver, the modified objective test for penal negligence cannot ignore the actual mental state of the accused. Objective mens rea is based on the premise that a reasonable person in the accused’s position would have been aware of the risks arising from the conduct. The fault lies in the absence of the requisite mental state of care. Hence, the accused cannot avoid a conviction by simply stating that he or she was not thinking about the manner of driving. However, where the accused raises a reasonable doubt whether a reasonable person in his or her position would have been aware of the risks arising from the conduct, the premise for finding objective fault is no longer sound and there must be an acquittal. The analysis is thus contextualized, and allowances are made for defences such as incapacity and mistake of fact. This is necessary to ensure compliance with the fundamental principle of criminal justice that the innocent not be punished.

[25] As is indicated in R. v. Beatty, the Crown must prove beyond a reasonable doubt the actus reus element of the offence of criminal negligence and then, the mens rea element of the offence if the actus reus of the offence is proven. Where the actus reus of the offence of criminal negligence has not been proven, the court does not have to consider the mens rea element of the offence.

[26] I note that this approach reformulated the test on negligence-based offences earlier set out by that court in R. v. Hundal, 1993 CanLII 120 (SCC), [1993] 1 S.C.R. 867. The actus reus element as modified by Beatty is reflected in the following paragraphs.

Actus reus

[27] As set out in the jurisprudence, proof of criminal negligence requires more than just carelessness. The elevated standard set out in s. 219(1) of the Criminal Code, is reflected in R. v. Tayfel, 2009 MBCA 124, 245 Man. R. (2d) 300, at para. 80:

As we know from Beatty, the actus reus of negligence-based offences is defined solely by the words of the applicable section of the Code. Section 219(1) of the Criminal Code of Canada states that:

219(1) Everyone is criminally negligent who

(a) in doing anything, or

(b) in omitting to do anything that it is his duty to do,

shows wanton or reckless disregard for the lives or safety of other persons. [Emphasis added]

[28] Proof of this elevated standard is the criminal standard of proof beyond a reasonable doubt: see Tayfel, at para. 81.

[29] In addressing what is meant by the words “wanton” or “reckless” the Manitoba Court of Appeal in Tayfel goes on to state at paras. 83 to 85 inclusive of its reasons:

83 In R. v. L. (J.) (2006), 204 C.C.C. (3d) (Ont. C.A.), Weiljer J.A. addressed the meaning of wanton and reckless by citing, with approval, the following comments of Hill J. in R. v. Menezes (2002), 2002 CanLII 49654 (ON SC), 50 C.R. (5th) 343 (Ont. S.C.J.) (at para. 72):

...The term wanton means “heedlessly” or “ungoverned” and “undisciplined” or an “unrestrained disregard for the consequences”. The word “reckless” means “heedless of consequences, headlong, irresponsible” [Citations omitted.]

84 In R. v. Waite (1986), 1986 CanLII 4698 (ON CA), 28 C.C.C. (3d) 326 (Ont. C.A.), referred to above, the actual quote by Cory J.A., as he then was, reads (at p. 341):

...The word “wanton” means “heedlessly.” “Wanton” coupled as it is with the word “reckless” must mean heedless of the consequences. ...

85 Other cases have equated “heedless” with a “complete disregard” for the consequences of one’s actions. For example, in R. v. Melnyk (1985), 1985 CanLII 2793 (SK QB), 41 Sask. R. 10 (Sask. Q.B.), affirmed (1985), 1985 CanLII 2525 (SK CA), 45 Sask. R. 258 (Sask. C.A.), Scheibel J. entered a conviction on a charge of criminal negligence in the operation of a motor vehicle. He wrote (at para. 62): “The accused’s conduct was heedless and indifferent and showed a complete disregard for the consequences of his actions.”

[30] And, as is indicated by MacDonnell J. in R. v. Kazenelson, 2015 ONSC 3639, in para. 112 of his judgment:

Proof of wanton or reckless disregard “requires proof that Mr. Kazenelson’s conduct was a marked and substantial departure from what a reasonable person would do in the same circumstances.”

[31] Thus, the jurisprudence indicates that a “marked” departure from what a reasonable person would do is not sufficient. The conduct must be a “marked” and “substantial” departure from what a reasonable person would do in the same circumstances to get the conduct to one of “wanton” and “reckless” disregard as set out in s. 219(1) of the Criminal Code.

Mens rea

[32] With respect to the mens rea element of negligence-based offences, a useful summary is provided by the Court of Quebec in R. c. Scrocca, 2010 QCCQ 8218. At paragraph 73 of that decision, the court states:

Some important rules postulated by Beatty can be summarized as follows:

− The law on penal negligence, which includes criminal negligence, concerns itself both with conduct that deviates from the norm, which establishes the actus reus, and with the offender’s mental state, which concerns the mens rea. The prosecution must prove both the actus reus and the mens rea

− The modified objective test is applied to determine the requisite mens rea for negligence-based criminal offences. First, the circumstances of the offence must show a marked departure from the standard applicable to civil liability. When conduct amounts to this marked departure, the court can find that a blameworthy mental state exists. Second, application of the modified objective test cannot disregard “the actual state of mind of the accused”. On the issue of negligence, objective mens rea is determined by an analysis following which the court concludes that a reasonable person, in a situation similar to that of the accused, would have been aware of the risk created by the conduct. The fault lies in the absence in the accused of the requisite diligence having regard to the activity in question.

− In any event, the analysis must be contextualized. The accused can assert defences such as incapacity or mistake of fact.

[33] In dealing with the mens rea element in the offence, the court in Scrocca states at paras. 93 and 94 as follows:

The mens rea

This stage of the analysis has two components.

We must first characterize the conduct of the defendant. Does it constitute in the circumstances a marked and substantial departure from the norm expected of a reasonably prudent person? If so, we must proceed to the second component, which consists in examining the defendant’s actual state of mind so as to determine whether there is any doubt that a reasonable person, placed in the same situation would have been aware of the risk created by the conduct.

[34] The court goes on in Scrocca to state at para. 101:

In Beatty, on the subject of determining mens rea, Charron J. wrote that if the dangerous conduct constitutes a marked departure (in this case we must add the qualifier “substantial”) from the standard expected of a reasonable prudent person, the offence will be made out. When the evidence is conducive to such an interpretation, it is necessary to proceed to the second part of the analysis, which consists in assessing the actual state of mind of the accused.

[35] McLachlin C.J., wrote a concurring decision (supported by Binnie and LeBell J.J.) in Beatty with a different view on the issue of momentary lapse of attention in dangerous driving cases. At para. 67, McLachlin C.J. makes the following comments:

I therefore conclude that the correct statement of law is as follows:

1. The actus reus requires a marked departure from the normal manner of driving

2. The mens rea is generally inferred from the marked departure in the nature of driving. Based on the finding of a marked departure, it is inferred that the accused lacked the requisite mental state of care of a reasonable person.

3. While generally the mens rea is inferred from the act constituting a marked departure committed by the accused, the evidence in a particular case may negate or cast a reasonable doubt on this inference.

[36] Mr. Justice MacDonnell applied the modified objective test for mens rea in negligence-based offences in Kazenelson and indicated at paragraph 113 of his decision:

The “marked and substantial departure” standard applies not only to the actus reus of criminal negligence but also to the mens rea. A modified objective test is to be used in this respect. I am required to consider the facts that existed at the material time in light of Mr. Kazenelson’s perception of them and to assess whether, in that context, his conduct constituted a marked and substantial departure from what would be reasonable in the circumstances. The Crown must prove either that Mr. Kazenelson adverted to an obvious and serious risk to the lives or safety of the workers and failed to act, or that he gave no thought to an obvious and serious risk and the need to take care.

[37] The court must keep these principles in mind when assessing the evidence received at this lengthy, complex and challenging trial involving the accused, Robert Wood.

THE EVIDENCE

The General Condition of the Algo Centre Mall

[38] As part of its case, the Crown called numerous witnesses who visited the mall or worked in the mall and who were in a position to comment on the condition and the overall state of the mall in Elliot Lake, Ontario prior to its partial collapse in June 2012.

[39] The picture painted by these witnesses is bleak as to the ongoing leakage problems in the mall and the general deterioration of the mall.

[40] Some individuals visiting the mall were so concerned that they took photographs of what they observed so there would be a permanent record. Bonnie Ladell is a retired risk manager for the Hudson Bay Company and the Municipality of Toronto. She moved to Elliot Lake, Ontario in 2004 in search of affordable housing. Ms. Ladell testified that she attended at the mall on average two times per week. When she first attended in 2004, the mall appeared to her to be clean but it was not leak-free. Ms. Ladell indicated in her evidence that as time went on she became increasingly concerned about the condition of the mall that she took two sets of photographs depicting the areas of concern for her. These photographs were entered as Exhibit 6.

[41] The first set of photographs, marked as Exhibit 6-1 to 6-17 inclusive, were taken by Ms. Ladell on February 13, 2012. Several of the pictures taken by Ms. Ladell were of the upper level kiosk area of the mall, the area of ultimate collapse. In particular, Exhibit 6-7 depicts the entrance to the upper mall from the rooftop parking and the kiosk and food court area. This photograph shows stained and missing ceiling tiles in the kiosk and food court area. Exhibit 6-12 depicts a large hole in the ceiling with shards of drywall coming out of the ceiling in the upper level of the mall facing the kiosk booth. In her evidence, Bonnie Ladell commented on a crack in the hallway between Hungry Jack’s Restaurant in the food court running toward the kiosk area. Ms. Ladell testified that to her the crack appeared to expand and seem to move. Ms. Ladell indicated in her evidence that “I was concerned that the whole ceiling was going to come down”.

[42] The second set of pictures marked as Exhibit 6-18 to 6-37 inclusive were taken by Bonnie Ladell on April 13, 2012, Ms. Ladell testified that she took these photographs of the condition of the mall because the day before she observed an individual on a large rolling stick ladder taking photographs with a digital camera. Unknown to Ms. Ladell, this individual was the accused, Robert Wood, who attended at the mall on April 12, 2012 to do his last inspection of the mall which resulted in his report dated May 3, 2012. Ms. Ladell thought it unusual for someone to be inspecting the mall so she returned with a camera to take her own pictures the next day.

[43] Some of the photographs taken by Ms. Ladell on April 13, 2012 were of the exterior of the mall building. Exhibit 6-18 depicts the steel on the base of a post in the walkway being rusted so badly it was eaten through. Photograph 6-20 depicts the level of corrosion where the steel posts met the concrete in the outer walkway area of the mall. Exhibits 6-24 and 6-25 depict similar corrosion to such an extent that the steel is eaten through. Exhibit 6-26 depicts a steel beam supporting the concrete walkway at the front of the mall on Ontario Avenue. This beam appears to be heavily rusted and in fact oxidized on the top flange. Exhibit 6-31 is a photograph of the lower edge of the walkway. This photograph taken on April 13, 2012, clearly indicates an excessive amount of rust and corrosion visible.

[44] Exhibits 6-33 and 6-34 depict a portion of the interior of the Zellers store showing ceiling tiles stained with water stains, missing ceiling tiles and yellow tarps hanging below the ceiling designed as a water catchment device.

[45] Ms. Ladell indicated in her evidence that the condition of the mall was a topic of conversation between her and her friends, and that she expressed her concerns to her friends about the general state of the mall, which she described as a “mess” in the months prior to the collapse, and about her particular concern with the kiosk area. Ms. Ladell indicated in her evidence that although she discussed her concerns to her friends she never brought her concerns or the pictures that she took to the management of the mall. Ms. Ladell explained that she did not do this because the general state of the mall made her believe that the owners of the mall would not take any corrective measures, so she didn’t bother telling them.

[46] Alla Guillmette has lived in Elliot Lake for a considerable amount of time, approximately 42 years and well before the mall was built. Ms. Guillmette remembers the opening of the mall and its first year of operation in 1981. From 1981 to 1993, Alla Guillmette managed the Peoples Jewellers store which was located in the mall. Not too long after the mall opened, Ms. Guillmette noticed water infiltration in various locations in the ceiling tiles in the mall. This started with the spring thaw, and there were more and more ceiling tiles removed as time went on. Ms. Guillmette indicated in her evidence that initially she was not concerned with the leaking in the mall because it was a new building but that her level of concern increased as time went on and more ceiling tiles were down and there was more evidence of leaks. Eventually Ms. Guillmette developed concerns about the safety of the mall and particularly the kiosk area where leakage appeared to happen quite often. Ms. Guillmette testified that when concerns were raised to the mall manager about the leaking problems the response was “what do you want me to do about it”.

[47] Katie Myllymaki has resided in Elliot Lake, Ontario since 1980 except for the four-year period from 1997 to 2011 when she attended university. Ms. Myllymaki worked in the kiosk from 2007 until the mall collapse in June 2012. Ms. Myllymaki described leakage water infiltration and falling ceiling tiles as a normal occurrence at the mall, which she saw “since I was a toddler”. She described the leakage being particularly bad when it rained or there was a build-up of snow, especially in the spring season. Ms. Myllymaki testified that the parking roof level was always wet with puddles. As Ms. Myllymaki observed about the parking deck, “there didn’t seem like there was anywhere for the water to go”. Ms. Myllymaki testified that there was “constant” leaks at the kiosk area in the mall and at one time there was a large hole in the ceiling in the kiosk area which was repaired before the mall collapse, although the repair job was unsatisfactory according to Ms. Myllymaki looking more like “patchwork” and an unfinished job.

[48] Sarrah Brown was brought to Elliot Lake, Ontario in November 2005 by the affordable price of real estate. Ms. Brown testified that she attended at the mall from time to time to purchase groceries and household goods. She became increasingly concerned about the condition of the mall as time went on which prompted Ms. Brown to write a letter to the Editor of the Elliot Lake Standard, the local newspaper in Elliot Lake, to express her concerns about the safety of the mall. The letter Ms. Brown wrote was dated August 28, 2008 and published by the Elliot Lake Standard on September 3, 2008 under the caption “Mall needs to be repaired now”, (Exhibits 13A and B). In that letter to the Editor, Sarrah Brown describes the poor state of the mall and the demoralizing effect of this for storeowners and customers. Ms. Brown calls for the closure of the mall by government agencies until the problems in the mall have been rectified. It is worthwhile to read and reflect upon Ms. Brown’s letter, which as published reads as follows:

...Who, other than the owner and its contractors, inspected this mall to ensure there is no danger to the individuals who work and shop there? Leakage of this magnitude for this period of time has to raise some concerns.

The municipal and provincial governments bear responsibility for the safety and wellbeing of the public of this city and province. Perhaps it’s time for these government agencies to step in and, if necessary, force the mall’s closure until these matters have been rectified. Even the threat of such action might speed up the process considerably.

I hope we are not at some point in the future glued to our TV screens following a calamity as government officials, yet again, seek excuses and places to lay blame for their lack of action.

[49] The last paragraph of Ms. Brown’s letter is prophetic and worth repeating:

I hope we are not at some point in the future glued to our TV screens following a calamity as government officials, yet again, seek excuses and places to lay blame for their lack of action.

[50] Judy Lafleur, who has resided in Elliot Lake, Ontario for the past 17 years, referred to the Algo Centre Mall as “the waterhole”. In her evidence, Ms. Lafleur indicated that in the final five to six years before the collapse she held three jobs in the mall which brought her to the mall every day. Ms. Lafleur described the sorry state of the mall in terms of referring to the Zellers store as a “laugh” and the library as “horrible”. The situation with water leakage in the library got so bad that Ms. Lafleur stopped bringing her foster children into the library to get books. Ms. Lafleur testified that there was never a time that she can recall the mall not leaking. There were worse times than others, particularly on rainy days or days when it got warmer and the snow melted, when Ms. Lafleur described the water infiltration into the mall was “really bad”. Ms. Lafleur testified that there was one time when she was sitting out in front of the kiosk area when suddenly six or eight ceiling tiles fell. The kiosk was closed that day to do repairs, which Ms. Lafleur referred to as “half-assed” and a “bandage solution”.

[51] Gilles Desaulniers has resided in Elliot Lake, Ontario long before the Algo Centre Mall was built. Mr. Desaulniers testified that he started to notice leaks in the mall six to seven years after it was built and the leaking got worse over time to the point it was “leaking all over”. He described that at the kiosk area in the mall and at Zellers “there were buckets all over the place” to catch the water that was leaking. Areas of drywall in the mall affected by the leaks would be patched up but as stated by Mr. Desaulniers, “it didn’t last long”. Mr. Desaulniers noticed work on the upper parking deck a couple of times when he parked his truck – “I used to park my truck there and they were patching the roof”. Mr. Desaulniers described rust at the outside of the Foodland entrance to the mall and at the entrance of Zellers where he described the posts being all rusted. Near the end of March 2012, Mr. Desaulniers took pictures of what he observed at the mall. He indicated in his evidence that he took pictures because “We knew someday it was going to come down. It was leaking all over”. Exhibits 16-1 and 16-2 are pictures that Mr. Desaulniers took of the ceiling at the lottery kiosk. The pictures depict a large hole in the ceiling. Mr. Desaulniers testified that “that place was the worst place” and described the condition at the kiosk as “bad, very bad”. Exhibit 16-6 is a picture taken of the ceiling behind the kiosk going toward the washroom in the upper level of the mall. Mr. Desaulniers indicated in his evidence that this area was “pretty bad. It was leaking.” Mr. Desaulniers noted in his evidence that you could see the steel inside the hole above the kiosk booth as depicted in Exhibits 16-1 and 16-2 and that the steel inside appeared to be “all rusted” to him.

[52] Denise Henderson has lived in Elliot Lake since 2005. Ms. Henderson testified that she saw a lot of leaks and water pails in different places throughout the mall. She described the condition of the mall as “not in the best of shape”. She commented that she saw yellow tarps in the mall and that “she couldn’t believe that is how they dealt with it - that this was the mall’s solution for the leaking problems in the mall. Ms. Henderson took pictures of the offensive yellow tarps in March 2012, when the leaking was more prevalent due to the melting ice (Exhibit 14).

[53] Denise Lehman was employed in the Northern Reflections store in the mall from October 2010 until the collapse. Ms. Lehman testified that the Northern Reflections store had a few leaks that were contained by yellow bladders with a hose that drained into a pail. Ms. Lehman testified that she would see buckets in other areas of the mall, such as in Zellers where you would “always see Rubbermaid containers scattered along the floor” and in between the library and Service Canada and around the kiosk area you would normally see the buckets to collect water. It was the evidence of Ms. Lehman that you would see leakage if it rained or in the spring season and that the array of buckets within the mall would depend on the season. Ms. Lehman testified that at times there would be water collection containers in the mall and sometimes there wouldn’t be, depending on the time of the year.

[54] Andrena Wright also testified that at the mall “sometimes things looked worse than at other times”. Ms. Wright saw maintenance people doing work throughout the mall and on the upper parking roof where “there were guys up there all the time” doing repairs. Ms. Wright testified that maintenance men in the mall would spray paint the ceiling tiles to improve their look, indicating that “we are expecting a visit”, necessitating the repairs to be done.

[55] Rachel Rivet has lived in Elliot Lake her entire 57 years From May 2006 she worked in the lottery kiosk at the mall, in the kiosk in the upper mall and the lower mall. Ms. Rivet testified when she worked at the upper floor kiosk when it rained, leaking water was a problem and there was “buckets everywhere”. The buckets were so close to the kiosk that Ms. Rivet became concerned that customers would trip on them. The upper floor kiosk, as described by Ms. Rivet, was certainly more susceptible to leaking than the main floor kiosk. Ms. Rivet noted in her evidence that the rain or melting snow didn’t affect the kiosk on the main floor and that “I personally did not see any leaks around my kiosk”. Ms. Rivet used the rooftop parking but in time she started to use alternate routes to enter the mall to avoid using the rooftop parking. As Ms. Rivet stated in her evidence with respect to the rooftop parking, “I did not feel comfortable being up there”. Apart from the upper floor kiosk area, Ms. Rivet testified that the other areas where water infiltration into the mall was a problem such as Dollarama, the library, Zellers and Mum’s Place Restaurant, “where you had to walk around the bucket at the entrance of the restaurant”. Ms. Rivet described the entrance to the Creations and Things store as “a waterfall coming down the doors” when it rained outside.

[56] Heather Richer was the owner and operator of Mum’s Place Restaurant which was located adjacent to the food court and in close proximity to the kiosk in the upper level of the mall. Ms. Richer operated this restaurant for four years prior to the collapse of the mall in June 2012. Ms. Richer testified that the mall was referred to as “the bucket mall” because everywhere you went in the mall you saw buckets. Ms. Richer indicated in her evidence with respect to the Zellers store, “When I went to the men’s area you were dodging bladders and buckets”. Ms. Richer described the attempts by mall ownership and maintenance to repair the mall as “cosmetic” and “patched up” with no attempts to prevent the ongoing leakage. Ms. Rivet testified that, “We would have to complain quite a bit to get them to do anything”, referring to mall maintenance. Ms. Richer indicated in her evidence that the problems in the mall were so widespread and ongoing that, “We all knew eventually it was going to collapse”. There were many attempts to fix the roof in the mall and at one point in time there was a mall party hosted by the mall to celebrate the repair of the upper parking deck roof. Ms. Richer testified that she didn't attend that party “because I did not believe it”. Ms. Richer did not believe that the roof was fixed. She described the repairs as “patch jobs” and questioned, “How can you fix a roof with patch jobs?”

[57] Patricia McGurk worked in the public library in the mall for 12 years and became the chief librarian in the fall of 2009. Ms. McGurk testified as to water filtration problems that existed within the library space in the mall. Ms. McGurk observed that the leaking got progressively worse in the library space and was really a problem in the years 2008 and 2009. The library space continued to leak in the years after 2009 but as Ms. McGurk testified, “It was really bad for a while” referring to the 2008-2009 timeframe.

[58] Ms. McGurk testified that whether there were water leaking problems in the library space would depend on the weather outside and the time of the year. The spring and fall periods were particularly bad for water infiltration and blue tarps would be put over the books, particularly in the children’s section, any time when there was more than a thirty percent chance of rain forecasted. Ms. McGurk indicated in her evidence that the summer months were not a particular problem unless it rained and that there was no water infiltration into the library space in the winter months.

[59] If the ceiling tiles got wet enough in the library they would fall down into the books. When the ceiling tiles fell they were wet and heavy. Ms. McGurk testified that the blue tarps would be placed on the books in an effort to prevent the books from being damaged due to the water and the wet ceiling tiles that would drop onto the books. It was the evidence of Ms. McGurk that mall management and mall ownership were inattentive to the water problems in the library. As she put it, “There was not anything done to actually fix it, in the library anyway”.

[60] Ms. McGurk testified that she travelled throughout the mall and that she noticed water leakage in areas of the mall other than the library, such as in Zellers, the Dollarama store and the Bargain Store. Ms. McGurk also indicated that within the year prior to the collapse of the mall she noticed increased ceiling tiles missing around the kiosk area. Although the library remained in the mall until the partial collapse of the mall, Ms. McGurk testified that there were many discussions that took place about moving the library out of the mall because of the conditions within the mall.

[61] Brian Cuthbertson started employment as the manager of the Zellers store in the mall on February 14, 2007. The Zellers store was a large, anchor store within the mall, employing 60 people and occupying approximately 56,000 square feet of retail space.

[62] Mr. Cuthbertson testified that from the time he started at Zellers there was a water infiltration problem in the Zellers store. This is consistent with the evidence of other witnesses who described Zellers as a particular area of concern within the mall. Mr. Cuthbertson indicated in his evidence that he noticed missing ceiling tiles and buckets in various locations in the Zellers store from the time he took over as manager. It was the evidence of Mr. Cuthbertson that the water leakage problem became worse over time and at its worst there was close to 100 pails on the floor within the Zellers store to gather the water leaking from the roof. Mr. Cuthbertson testified that he would have to cover the counters in the store with blue tarp so merchandise would not be damaged and barricade certain areas off in the store so that customers would not slip and fall.

[63] Mr. Cuthbertson took photographs of what he observed in the Zellers store and 29 photographs were entered as Exhibits 17-1 to 17-29. These photographs graphically illustrate the water problem that was evident for all to see in the Zellers store. Missing ceiling tiles, yellow tarps hanging from the ceiling, hoses hanging from the ceiling, merchandise covered with tarps and plastic, buckets, metal water collection troughs located above the ceiling and water damaged columns are all depicted in the photographs taken by Mr. Cuthbertson. These photographs clearly indicate the extent of the water infiltration problem within the Zellers store in the mall. It is also clear from these photographs and the description provided by Brian Cuthbertson that the water leakage problem was throughout Zellers and not in just one area or location. For example, photographs 17-22 and 17-23 were in almost opposite ends of the Zellers store.

[64] It was the evidence of Brian Cuthbertson that the roof leakage problem within Zellers got particularly bad when Peak Restoration was doing the work to repair the upper parking deck in 2008. Mr. Cuthbertson indicated that Peak Restoration began work on the rooftop parking in July or August of 2008. He heard loud hammering away at the concrete with jack hammers. Exhibits 20 to 24 are photographs that Mr. Cuthbertson took of the roof parking deck when Peak Restoration was working on the parking deck area putting the “blue skin” membrane on the roof. Mr. Cuthbertson was concerned because the “blue skin” membrane was not roofing material to his knowledge. He was also concerned because one of the drains had been raised by Peak Restoration and covered by the “blue skin” membrane. This did not make sense to Mr. Cuthbertson who was concerned that there was going to be further water damage as a result of the way this work was done by Peak Restoration.

[65] Mr. Cuthbertson indicated that he raised these concerns and his general concerns about water infiltration in the Zellers store with mall management. Requested repairs were not made in a timely manner by the mall. Mr. Cuthbertson indicated in his evidence that he had two meetings with the mall owner, Bob Nazarian, to discuss the problems within the Zellers store. Mr. Cuthbertson was not impressed with these meetings or with Mr. Nazarian’s commitment to rectify the problems. As Mr. Cuthbertson put it in his evidence, “we were told what we wanted to hear” by Bob Nazarian.

[66] The lay witnesses who testified as to the condition of the mall were consistent in their evidence and the evidence of one witness corroborated the evidence of the others. Their testimony painted a very unfavourable impression related to the condition of the mall. One witness described the mall “as a mess” and aptly so. There were numerous problems with water infiltration within the mall, some areas such as Zellers, and the upper mall kiosk area being worse than others. The evidence of the witnesses also supports the view that the leakage problem in the mall was worse at certain times of the year than at other times. There were periods of time when the mall was not leaking, although this would not last, and leakage would start again when it rained or in the spring when the snow melted and in the fall when there were more periods of rain. Attempts were made to repair the upper parking roof to eliminate the water infiltration into the mall but these attempts were unsuccessful. The mall started to leak shortly after it was constructed in 1981 with the water infiltration into the mall continuing for over 30 years until the mall partially collapsed in June 2012.

Maintenance workers in the mall

[67] The court heard evidence from several maintenance workers employed at the mall and other workers who were contracted to do specific work in the mall prior to the partial collapse. One such person was Aaron Sigurdson. He worked in mall maintenance for close to a year, starting in the late spring or early summer of 2009. Mr. Sigurdson started his employment at the mall at approximately the same time as Peak Restoration did the work on the upper parking deck in the mall. Mr. Sigurdson testified that he was involved in the general maintenance in the mall but that he spent the majority of his time replacing wet and stained ceiling tiles throughout the mall. He described that the replacing of ceiling tiles was extensive work, “pretty much what I did all day long”. As Mr. Sigurdson put it, “I started at one end of the mall and pretty much worked my way down to the other end”. Mr. Sigurdson described the mall as “pretty leaky” when it rained.

[68] Aaron Sigurdson testified that he had occasion to go above the ceiling tiles on various jobs he did, one such job was the installation of cable for security cameras. Mr. Sigurdson told the court that at certain locations the spray foam insulation had worked its way off the beam. This gave Mr. Sigurdson the opportunity to view the steel. Although he didn't pay attention to the steel in other areas of the mall, Mr. Sigurdson testified that “one area did not look right”. Mr. Sigurdson testified that area was by the kiosk, where the steel beam was scaled with rust and looked peeled like a book. Mr. Sigurdson testified that when he was in the bulk head by the kiosk and there was traffic overhead that it was loud and “felt like a shake almost”.

[69] In his evidence, Aaron Sigurdson commented on the water damage in various areas in the mall. In the back the drain pipe totally separated and had to be clamped and sealed. In the card shop there was bad leaking and a pipe in the ceiling had the bottom eaten away and had to be replaced by a plumber. Mr. Sigurdson testified that he saw chunks of concrete that had fallen to the floor in the mall the size of a football in one place and the size of a baseball in the bulkhead at the bottom of the escalator and stairs by the kiosk on the upper level of the mall. He testified that he helped with the painting and replacing of drywall where there was open holes but it was frustrating because “it was like putting a bandage on it – you knew it was going to leak again”.

[70] It was the evidence of Aaron Sigurdson that on one occasion he worked on the upper parking deck. His job was to take the tar out of the cracks on the parking deck. Mr. Sigurdson reported that “I thought that it was stupid but I did what I was told to do”.

[71] Mr. Sigurdson testified that he told his boss, the head of maintenance in the mall, Ray Leblanc, about the rusted beam that he saw in the kiosk area and that Mr. Leblanc looked at the rusted beam. Mr. Sigurdson assumed that Mr. Leblanc would have done something about it because “he was the head of maintenance”.

[72] Kenneth Neeley was employed by Peak Restoration and was employed at the mall to do repairs to the upper roof parking deck. Mr. Neeley testified in his search for leaks in the mall he had occasion to lift the ceiling tiles and look at the steel beam that ran parallel from the escalator to the kiosk on the upper level of the mall. Mr. Neeley testified that the steel beam in that area was “so dissolved it looked like the pages of a book”. Mr. Neeley testified that he had “never seen steel separated like that before”. Mr. Neeley testified that the bolts at the connection part of the steel beam were pitted and rusted and deformed in that the bolts were not their original shape. Mr. Neeley testified that he could only see four bolts; the other two he testified had been dissolved through corrosion. Mr. Neeley testified that when he looked into the ceiling in the kiosk area of the mall he could see the beam and the connection when he looked up into the ceiling and that he “didn’t see any of the insulation when I looked into the ceiling”. It should be noted that the photograph entered as Exhibit 10-239, which is the connection at the failed beam which Mr. Neeley is referring to in his evidence, clearly indicates that there is insulation at the connection on the beam.

[73] Mr. Neeley testified that although he was working for Peak Restoration to do repairs to the parking deck roof he did not agree with how the repairs were being done or that a “blue skin” membrane was being used to prevent water infiltration from the roof into the mall. Mr. Neeley testified that he had never used blue skin membrane on a roof before and that he told his superiors that it was not the correct sealant to be used on the roof. Mr. Neeley indicated in his evidence that he “raised it every day” but Peak Restoration continued on paying no attention to his opinion.

[74] Terry Neave was employed at the mall from March 2012 until the partial collapse of the mall on June 23, 2012. Mr. Neave is the mall maintenance manager who took the accused, Robert Wood, through the mall on April 12, 2012 for the inspection that Mr. Wood performed. Further reference will be made to this in detail later in my judgment.

[75] Mr. Neave testified that in the last month before the partial collapse of the mall he was involved in repairs to the parking level roof which involved applying a hot rubber sealer in the cracks on the roof. Mr. Neave testified that Bob Nazarian had arranged for the purchase of the material and had it delivered to the mall. Mr. Neave indicated that Bob Nazarian took him up to the roof and showed him areas that he thought were important to repair right away. The oldest sealant would be cut out, the cement would be cleaned and then the hot rubber would be poured into the cracks and seams on the parking deck and would cool. Mr. Neave testified that he had completed a little more than half of the parking deck roof above Zellers at the time of the collapse of the mall.

[76] Mr. Neave testified that during his tenure as mall maintenance manager, ceiling tiles that were falling were not being replaced until the roof repairs had been completed.

[77] Brent Willett is a licenced plumber who owns and operates PHC Plumbing. In his capacity as a plumber, Mr. Willet did work in the mall. Mr. Willett installed drip trays or troughs underneath the beams in Northern Reflections and the Bank of Nova Scotia. This work was done in February 2008. Mr. Willett indicated that as a professional he didn't think the installation of troughs were a good idea. Mr. Willett described it as a “backyard fix” and advised the mall to put money into repairing the roof rather than putting in water troughs in the ceiling.

[78] The installation of water troughs required Mr. Willett to do work above the ceiling where he got a look at the steel beams. Mr. Willett testified that in the steel above the parking deck you could see corrosion and water marks. The sprayed-on fireproof insulation was off the beam and the beam was exposed. In the area closer to the food court there was rusting, pitting and a “buildup of flaking” on the exposed steel beam, according to evidence of Brent Willett. He indicated that where the two beams joined at gridlines FX and F and gridline 16 on Exhibit 1, there was a fair amount of corrosion. As Mr. Willett described it, “A lot of the corrosion was all over the beam ‘cause the water had, you know, when it rained or the ice melted or snow it ran completely over the whole beam, right from the top down around and to the bottom”.

[79] Mr. Willett testified that with respect to the kiosk area in the upper level of the mall, “There was quite often leaks in that area and around that area”. Mr. Willett indicated that he got called to install bladders in the ceiling at the mall, “Depending on the weather, if they had a heavy rain”. He installed these bladders above the ceiling in the Zellers store.

[80] Mr. Willett also did work at the mall to unplug drains. This included work on the upper parking level roof. Mr. Willett testified that on the roof the drains were smaller in diameter than they should have been to drain the water out properly. Mr. Willett testified that he provided a quote to the mall to increase the size of the drain along gridline 16 (Exhibit 1) but the mall management never contracted him to do this work.

[81] While on the roof of the mall, Mr. Willett observed the blue skin membrane patching on the parking deck roof. Mr. Willett indicated that he did not believe that the blue skin material was roofing material and that, “I have never seen it on a roof other than there”, referring to the mall.

[82] Mr. Willett also testified that he had observed chunks of concrete that had fallen in the mall. Mr. Willett testified that in the upper mall, “There was a chunk of concrete that had come down just on the corner in – through the ceiling and went through the bulkhead and landed on the – on that floor”. Mr. Willett indicated that he could see a visible chunk of concrete missing on the slab just above the escalator on the upper floor of the mall. Mr. Willett testified that he would see missing concrete on top of the ceiling tiles as well.

[83] When Brent Willett was doing this work in the mall, which appears to be late 2007 to April 2008 from his invoices to Eastwood Mall Inc. entered as Exhibit 25, the steel beams in the ceiling were for the most part exposed and could be seen. The fireproof spray insulation on the beam had fallen away due to water infiltration. Mr. Willett described the insulation as “hanging down” and this left the steel beam exposed in areas such as the Dollarama store where Mr. Willett observed rusting and pitting along the beam, and some white staining on the beam above the ceiling in the Dollarama store in the mall.

[84] Danny Doogan is an iron worker by trade, with over 25 years of experience. He was employed by the mall in 2006 and 2007 to do general maintenance work at the mall. He left this employment in 2007 when an iron worker position opened up for him. Mr. Doogan recalled that a large part of his duties involved searching for leaks in the mall and replacing ceiling tiles in areas that were leaking. As he put it, “Pretty much every day we’d have something to do with leaks, either fixing them if we could, if the weather permitted, or tracking them down or replacing tiles”.

[85] It was the evidence of Mr. Doogan that the biggest areas of leakage within the mall was in Zellers, the library and the kiosk area. As Mr. Doogan described it these areas, “were always pretty much leaking. They might slow down, but they’d never not leak for a few weeks”. Mr. Doogan described the library as leaking “continuously”. Mr. Doogan indicated that in the library, “they had to put tarps to protect the books”. As to the kiosk, Mr. Doogan testified that, “The kiosk pretty much leaked the whole time it was there. Sometimes it would slow down, but it would never stop for more than a week”.

[86] Mr. Doogan recalled being above the ceiling to see the steel beam in the Zellers store. He could not recall doing this in the kiosk or the library areas. Mr. Doogan testified that there was rust on the steel beams in the ceiling and he could see where the water had been flowing on the steel. In particular, Mr. Doogan recalled the rust on the bolts, describing that, “It would be a connection between a beam and a column, and that’s where I’d notice them”. As to what he saw, Mr. Doogan testified:

The bolts, the bolts for most I’d almost say 90 percent of the bolts that I looked at would be very badly rusty, meaning be flaking or there’d be a slag type of rust that’s been growing or it would be – would be all rusty, it would be worn looking more than normal.

[87] Although Mr. Doogan was never up in the ceiling in the kiosk area, he did do work at the kiosk area. As he stated in his evidence, “I picked up debris, like drywall that was on the floor or swapped out the pails ‘cause there was always a pail or a bucket there”.

[88] Mr. Doogan’s maintenance duties at the mall also involved work on the upper deck parking level. He testified that he was working on caulking the roof. This work involved cutting out the old caulking with a cut-off saw or a grinder, cleaning the area and applying new caulking to the area. This was done all over the roof area and, as Mr. Doogan testified, “mainly at the spots where it would be leaking, but I think they methodically tried to do the whole roof – rooftop”.

[89] It was Mr. Doogan’s view that the caulking job would not last long due to the traffic on the rooftop parking at the mall. While he worked on the roof, Mr. Doogan noticed that the drainage was a problem on the roof in that the roof would hold water and not properly drain. Mr. Doogan testified that he brought his concerns about the mall to the attention of his manager, Tim. As Mr. Doogan stated in his evidence, “I asked him if the mall had been inspected”.

2006 Involvement by the City of Elliot Lake in the Algo Centre Mall

[90] The City of Elliot Lake, through its chief building official and fire chief, was involved with Bob Nazarian and Eastwood Mall Inc. in 2006 with respect to concerns about leakage in the mall and the lack of fireproof material on the steel beams within the mall. Regrettably, the efforts of city officials to rectify these problems in the years between 2006 and 2009 were ineffective.

[91] Paul Officer began his employment with the City of Elliot Lake in 1981 as a building inspector. He was promoted to Chief of the Fire Department in Elliot Lake, Ontario in 2002, a position he held until his retirement on September 22, 2015.

[92] Mr. Officer described the City of Elliot Lake as having a proactive fire inspection program which mainly concentrated on keeping commercial buildings fire safe. This required the mall to have annual fire inspections. The annual inspection did not peak Mr. Officer’s interest in the mall in 2006. Rather, it was in response to a complaint by Syl Allard, who was the Chief Building Official for the City of Elliot Lake.

[93] At Tab 1 of Exhibit 43 is a public concern form dated October 23, 2006 which details Mr. Allard’s concerns as follows:

Syl called with reference to a property standards complaint at the mall. He said during his inspection at the library and Zellers he noticed the fireproofing material protecting the structural steel has fallen off leaving sections of the beam exposed. He will be putting an order for them to review all structural steel components, and remedy the leak, he felt the fireproofing was a Fire Code issue.

[94] In Mr. Officer’s view, this was in fact a Fire Code issue. As Mr. Officer indicated in his evidence, “Steel beams are subject to heat - fireproof insulation on steel beams deflect the heat and prevent the beam to get a heat rise which would weaken the beam”. Having fireproofing on the steel beams in the Algo Centre Mall was a big deal. As Mr. Officer stated, “I wanted the fireproofing material replaced”.

[95] At Tab 2 of Exhibit 43 is a copy of the letter dated November 1, 2006 from Paul Officer to Bob Nazarian, Eastwood Mall Inc., setting out the contraventions of the Ontario Fire Code and requesting that the problem be rectified.

[96] Contemporaneously, Mr. Derreck, the Chief Administrative officer sent a letter to Bob Nazarian, Eastwood Mall Inc., which stated in paragraph one:

Inspections have been completed at the Algo Centre Mall by the City’s Building Property Standards, Fire and Health and Safety officials and that their findings include discovery of conditions that violate various provisions of Provincial Acts and Regulations and of City By-laws regarding the structural integrity of the mall building and the health and safety of tenants and members of the public who visit and shop at the mall. [Emphasis added]

(Exhibit 43, Tab 3)

[97] These communications by Mr. Officer and Mr. Derreck to Eastwood Mall Inc. were responded to by Thomas Turner, General Manager of Eastwood Mall Inc. by letters dated November 13, 2006. The letters set out the plans of Eastwood Mall Inc. to repair the leaks in the roof at the mall. As stated in paragraph three of one of the letters (Exhibit 43, Tab 4):

As you are aware, this roof has leaked for the last 25 years and during that time a multitude of methods were used to patch joints and plug holes. Contrary to previous practices, our company has decided to repair the roof completely. As much as we might wish otherwise, this is not an overnight project. We believe that the end of August 2007 might be a reasonable time to expect completion of the work.

[98] After this communication dated November 13, 2006, Mr. Officer received a letter dated February 22, 2007 from Bruce Caughill, consulting engineer and architect. Mr. Officer knew Mr. Caughill and “held him in high regard”. Mr. Officer was relieved that Mr. Caughill was involved. As Mr. Officer put it in his evidence, “I was happy to hear that name and that he was going to be involved”.

[99] The letter from Mr. Caughill dated February 22, 2007 to Fire Chief Paul Officer reads, in part:

We noted some mechanical damage to fireproofing of steel beams. Further damage occurs under parking deck leaks. The Owner is in the process of a general repair/replace of joint sealants and where leaks persist, attacking them individually. Work was suspended in November by cold weather and will resume as conditions permit. We will be working with Algo Centre Mall on a program of repair of the fire proofing once the sealant process is substantially complete. An overall assessment will be conducted and a report submitted within six months. Copies of inspection reports will be submitted as they occur.

(Exhibit 43, Tab 6)

[100] With this correspondence, Mr. Officer expected the problems in the mall to be rectified after August 2007. Unfortunately that did not occur. By letter dated September 28, 2008, Mr. Caughill copied a letter to Paul Officer that he wrote to Bruce Ewald, CEO of the City of Elliot Lake, indicating that although he promised a report within six months, he “did not perform any inspections and did not submit any reports on this matter”. As Bruce Caughill stated in his letter dated September 28, 2008, “Our services on this file and other 151 Ontario Avenue improvements were terminated by Eastwood, in a disagreement over payment for services, in July 2007”.

[101] From the evidence it does not appear that Eastwood Mall Inc. notified Mr. Officer or the City of Elliot Lake about the fact that Mr. Caughill was no longer assisting them. From the later events in 2009 it is clear that the owner of Eastwood Mall Inc. did little to rectify the problems in the mall and the Elliot Lake Fire Department did no follow-up between the time Mr. Caughill was to report (August 2007) to August 2009 to ensure that its concerns about the fireproofing of the steel beams within the mall were addressed. Paul Officer could not offer any explanation about why there was no follow-up by the Elliot Lake Fire Department from 2007 to August 2009.

[102] Sylvester Allard was still the Chief Building official at the time a notice of violation was issued on October 24, 2016 to Eastwood Mall Inc. from the Corporation of the City of Elliot Lake. Prior to that notice being issued, Mr. Allard prepared a report to Tom Derreck, CEO, regarding the library roof leak inspection. In that report, Mr. Allard notes:

This appears to be the first time in the past four years an ongoing leakage problem with the mall roof has been brought to the attention of building department staff for either structural concerns or property standards compliance matters.

[103] In his report to Mr. Derreck, Sylvester Allard comments about the leakage at Zellers, the library and the Northern Reflections store. Mr. Allard notes in his report:

In any of the areas observed, there was nothing seen or mentioned that would lead us to believing the structure is in imminent danger of collapse or for that matter that it is anywhere close to this situation. However, the information that was given, and the fact there is substantial rust in the leak areas is testimony that this is a long-standing and ongoing leakage problem. The concern that this raises is that the continuous entry of water onto the steel structure may have had or may still have an adverse impact on the structural elements and its connection. To dispel any of these suspicions, a structural review of the leak areas by a professional engineer will be necessary.

(Exhibit 42, Tab 1)

[104] As a result of the inspection and investigation completed by the building department, the City of Elliot Lake issued a notice of violation on October 24, 2006 to Eastwood Inc. setting out violations to by-laws numbered 03.29 as follows:

VIOLATION: section 5.(1)(a) The Roof of a building shall be maintained in a watertight condition so as to prevent leakage of water into the building, and where necessary, shall be maintained by the repair of the roof and flashing or by applying waterproof coatings or coverings. The roof drainage system, where present, shall be kept in good repair, watertight, and free of health and accident hazards. Leakage was observed at various points within the Algo Centre Mall including numerous locations in Zellers, Northern Reflections, and the City of Elliot Lake Public Library.

REMEDY: Carry out repairs of the existing mall roof/parking surface to prevent leakage of water into the building including repairs to the roof drainage system. Within 14 days of receipt of this notice, provide a written description of a repair program that will be undertaken to achieve a watertight roof and include a schedule outlining the timeframes necessary to have the work completed.

VIOLATION: Structural Capacity – Every part of a building shall be maintained in a structurally sound condition and so as to be capable of sustaining safely its own weight and any load to which it may normally be subjected. Materials that have been damaged or show evidence of dry rot or deterioration shall be repaired or replaced in a workmanlike manner. Water leakage over a long period of time at various locations in the mall has caused extensive rust on structural members and their connections in some areas.

REMEDY: A review by a Professional Engineer of building structural frame in leakage areas must be conducted forthwith and a report certifying the acceptability of the existing condition or the remediation steps necessary to be taken to ensure structural capacity must be provided to the Chief Building Official by December 15, 2006.

(Exhibit 42, Tab 2)

[105] It is worthwhile to repeat that the remedy section of the notice of violation requires a review of the structure by a Professional Engineer and a report with respect to the structural capacity of the mall by December 15, 2006.

[106] Mr. Allard wanted to have a structural review of the mall by a Professional Engineer due to the longstanding and ongoing leakage problem at the mall. Mr. Allard retired at the end of May 2008. He never did get the engineer report for the mall that he was looking for, nor did he get confirmation that the problems identified in the notice of violation dated October 24, 2006 were remedied. It is clear from the evidence of Mr. Allard that the City of Elliot Lake was derelict in its efforts to monitor and remedy the problems in the mall from 2006 until the City’s next involvement in the fall of 2009. Mr. Allard could not provide any satisfactory explanation why the mall problem was not followed up on. The mall file simply fell through the cracks.

2009 Involvement by the City of Elliot Lake in the Algo Centre Mall

[107] Sylvester Allard was replaced as Chief Building official for the City of Elliot Lake, Ontario in July 2008 by Mr. Ewald. Mr. Ewald was aware of the notice of violation dated October 24, 2006 and the fact that an engineer’s review of the structural frame in leakage areas required under that notice had not been received by Eastwood Mall Inc. Mr. Ewald did not pursue compliance with the notice of violation further at that point in time.

[108] In August 2009, retrofit work was being done at the mall. This prompted further involvement by both the fire department and the building department into the condition of the mall. Fire Chief Paul Officer instructed Darren Connors to do a detailed fire inspection of the mall, and as a result a Fire Safety Inspection Report was prepared and dated September 24, 2009 (Exhibit 43, Tab 8). That report indicated that, “The inspection took place to witness damage to fireproofing material on structural steel members and rust on the steel that possibly affect the strength of the beams”. In the report there were eight deficiencies noted which required remedy by the owner of the mall, namely, Eastwood Mall Inc., Bob Nazarian. The main area of complaint was missing fireproofing from the steel beams noted in the area between the lottery kiosk and the escalator, in the Dollarama store, in the Bargain Shop and in the service corridor behind the Dollarama store. There were other more insignificant deficiencies noted on the Fire Safety Inspection Report such as improper latching of doors and inadequate lighting in the service/exit corridor behind the library.

[109] The Fire Safety Inspection Report also noted that, “The Zellers store was viewed and Mr. Yakimov indicated they had about thirty leaks in this area and he called them mild leaks”. Under the “Re-inspection Date” section of the report it states:

The owner is requested to provide appropriate documentation satisfactory to the Chief Fire official by October 24, 2009, showing that a building permit has been applied for which will result in work being undertaken to correct the violations. Further, be advised that failure to correct these violations within 3 days of the date as determined by the Chief Building official may result in prosecution.

[110] Bruce Ewald, as the Chief Building official of the City of Elliot Lake was copied with the Fire Safety Inspection Report dated September 24, 2009. In conjunction with the inspection performed by the Fire Department, Mr. Ewald conducted his own inspection of the mall and prepared an Inspection Report dated September 24, 2009. (Exhibit 46, Tab 3)

[111] Mr. Ewald’s report details evidence of water leakage in several areas of the mall. Mr. Ewald indicated in his evidence that the phrase “evidence of water leakage” in his report refers to the rust on the steel beams that he observed. Mr. Ewald assumed that the steel beam got wet which caused the fireproofing to separate away from the steel. In his inspection report, Mr. Ewald notes, “Evidence of water leakage on upper level of mall above the lottery ticket booth adjacent to the food court. Missing fireproofing on structural steel members; rust on structural steel.” Mr. Ewald also notes similar water leakage and missing fireproofing from the structural steel above the Dollarama store, above the Bargain Shop, in the service hall behind the Dollarama store and in the service corridor behind the library. At point number ten of the Inspection Report, it is also noted “evidence of multiple leaks (more than 20) on ceiling tiles in the Zellers store”.

[112] Bruce Ewald testified that as a result of the concerns set out in his inspection report dated September 24, 2009, he felt that the structure of the building needed to be looked at. As a result of this belief, an order to remedy was issued on September 25, 2009 to Eastwood Mall Inc. That order to remedy appears at Exhibit 46, Tab 4. Such an order is a prescribed document in Ontario’s Building Code Act, 1992, S.O. 1992, c. 23, and it can result in enforcement if there is non-compliance. As Mr. Ewald stated, such an order has more teeth than a notice of violation, which has no force in law.

[113] Schedule “A” to the order to remedy refers to the requirements for a structurally sound building, the maintenance of the roof in a watertight condition and the requirement of integrity of all fire separations as set out in various sections of By-Law 03-29. The list of deficiencies set out in Schedule “A” of the order to remedy are as follows:

An inspection has revealed damaged fireproofing materials and/or excessive rust due to long-term water infiltration on structural steel beams in the following areas:

(a) Above the lottery booth adjacent to the food court;

(b) Above the Dollarama store;

(c) Above the Bargain Shop;

(d) Above the service hall behind the Dollarama;

(e) Above the service corridor behind the library;

(f) Above the main corridor in front of the new mall office.

Further, it was noted that there was evidence of numerous leaks (more than 20) above the Zellers store and evidence of rusted structural components outside, in front of the Foodland and the main entrance to the mall.

[114] Under the remedy section, that is, what is required to deal with the above-noted deficiencies, the document reads as follows:

Remedy:

The owner shall;

Have the entire mall area inspected by a Structural Engineer licenced in the Province of Ontario and correct all deficiencies noted above and any further deficiencies which may be discovered by the engineer in the manner prescribed by the aforementioned engineer. Obtain a building permit for the required work to be undertaken, pursuant to section 8(1) of the Ontario Building Code Act.

[115] Initially the City of Elliot Lake considered retaining its own engineer to conduct a structural inspection of the mall. That approach was abandoned after Mr. Ewald spoke to Bruce Caughill, who is an architect and engineer. In an email dated September 24, 2009 from Bruce Caughill to Bruce Ewald, Mr. Caughill states:

As discussed, the review of this building would be beyond my staff and time capabilities. I called Bob Wood of M.R. Wright Associates to see how they might respond. I have worked with MRW and Bob Wood on many files over the past 30 years and believe they are the right fit.

[116] Bob Nazarian and Eastwood Mall Inc. ultimately retained Robert Wood of MRW to do the engineering report and Bruce Ewald was satisfied with this given the above-noted comments of Bruce Caughill and the fact that Robert Wood had come “highly recommended” by other engineers that he had spoken to.

[117] Fire Chief Paul Officer, indicated in his evidence that he had discussions about the concerns the fire department had with the fireproofing of the steel beam issue, and Mr. Wood was responsive to his concerns and undertook to have the deficiencies corrected. As Mr. Officer stated, “It was music to my ears to hear that this was going to be fixed”. Ultimately, Furoy Insulation was retained by the mall to replace the fireproof insulation on the steel beams, and Mark Furoy testified that that work was performed between December 2, 2009 to December 22, 2009. Mr. Furoy was satisfied that the work his company did was up to standards with respect to the application of the fire retardant on the steel beams. The progress of this work was monitored by the Elliot Lake Fire Department and in its inspection report dated February 1, 2010, it is noted:

A re-inspection was conducted on the above-noted date, at which time all infractions from report dated September 24, 2009 were remedied. Your cooperation has been appreciated.

[118] At that point in time, Paul Officer was satisfied that the difficulty with the fireproofing within the mall previously identified in the Fire Safety Inspection Report dated September 24, 2009 had been remedied.

[119] It was the evidence of Paul Officer that Robert Wood was responsive to his requests and of assistance to him relating to the fire issues at the hotel in the mall. Mr. Officer described Robert Wood as being on the same page as him with respect to safety. Similarly, Bruce Ewald testified that Robert Wood was responsive to his request for additional fireproofing in the mall. Bruce Ewald testified that as a result of the inspection report dated December 16, 2009 (Exhibit 48, Tab 23) that he spoke to Robert Wood who took care of having the deficiencies corrected and Mr. Ewald was satisfied that the deficiencies were properly corrected.

[120] Ultimately, Robert Wood of MRW produced an engineering report, which is dated October 28, 2009, and to which a detailed reference will be made later in this judgment. Although the report is referred to as a “draft report” it is clear from the evidence of Bruce Ewald and the evidence of Robert Wood, that the report was intended to be a final report and it was treated as such by both Bruce Ewald and Paul Officer. Bruce Ewald testified that based on the report of Mr. Wood, dated October 28, 2009, he believed that the mall was structurally sound. Paul Officer had the same belief and in fact sent an email dated November 18, 2009 to Fred Bauthus, a councillor in Elliot Lake which read:

They have supplied the engineering report from M.R. Wright that does not have any concerns with the structural components of the building that have been subject to the leaks all these years

(Exhibit 43, Tab 9)

[121] Eventually, the City of Elliot Lake was satisfied that the deficiencies identified in the order to remedy dated September 25, 2009 had been addressed by the owner of the mall. In a letter dated February 11, 2010 from Bruce Ewald to Eastwood Mall Inc., Mr. Ewald states:

I find that all conditions of the property standards order issued on September 25, 2009 have been complied to the satisfaction of this department.

(Exhibit 26, Tab 13)

[122] With this letter, the order to remedy violation was rescinded. It was the evidence of Bruce Ewald that he, as Chief Building official for the City of Elliot Lake, was satisfied that the deficiencies had been remedied based on the report dated October 28, 2009 prepared by Robert Wood of MRW Consulting Engineers.

[123] It should be noted that in his evidence, Fire Chief Paul Officer painted a very negative picture of the owner of the mall, Bob Nazarian. At times, Mr. Officer could not conceal the disdain he has for Mr. Nazarian and at times in his evidence his frustration with Mr. Nazarian and his anger towards him were readily apparent. Mr. Officer indicated in his evidence that after the mall was sold to Bob Nazarian the mall property was getting more run down and that the Fire Code lists of problems were getting longer. It was the evidence of Paul Officer that the condition of the mall was deteriorating under the ownership of Bob Nazarian. When referring to the various inspections on the similar issue of fireproofing falling off the steel beam in the back of the hallway behind Dollarama, which involved inspections in 2012 and as late as May 31, 2012 (Exhibit 43, Tab 12), Mr. Officer stated, “All of these tend to go to Mr. Nazarian playing his games and cutting down his maintenance and causing problems”.

[124] In an email dated October 28, 2009 to Bruce Ewald, Paul Officer referred to Dmitri Yakamov, who was an employee of the mall, as follows:

Dmitri came in at 11:00 a.m. this morning. He informed me that he has concerns with the mall, that work will not be addressed correctly as Mr. Nazarian asked him to stall the Fire Department and to use the water leakage issue. Dmitri said he would not and was let go as of today. (This could be a sour grape issue).

[125] Paul Officer indicated in his evidence that Dmitri Yakamov was, “A little on the angry side” when he spoke to him and that Mr. Yakamov also expressed concern about the substantial amount of movement in the slabs in front of the hotel entrance on the upper parking level of the mall.

2009 Report by Robert Wood of MRW Consulting Engineers

[126] The report dated October 28, 2009 prepared by Robert Wood of MRW Consulting Engineers is entered as Exhibit 47. The report is addressed to Ms. Henri McCleery (also known as Henri Laroue) in her capacity as the manager of the Algo Centre Mall. The first paragraph of Mr. Wood’s report indicates that he inspected the mall on October 5, 2009. The first paragraph also outlines Mr. Wood’s scope of review and reads as follows:

As per your request we visited the above noted mall complex on Monday, October 5, 2009 to specifically review and report on concerns that water leakage through the parking deck may have created a weakening of the structure and damaged the required sprayed-on fireproofing of the steel structure.

[127] Mr. Wood’s report indicates that he reviewed drawings of the original 1979/1980 construction, including the architectural drawings prepared by James W. Keywan, Architect, the structural drawings prepared by Beta Engineering and the structural steel shop drawings prepared by York Steel Construction. Mr. Wood notes at the third paragraph of his report, “The structural shop drawings indicate the steel structure of the parking level was installed at varying heights to promote drainage to the roof drains located on gridlines 4, 8, 12, 16 and 18”.

[128] In the last paragraph of the first page of Mr. Wood’s report he states, “The review of the building consisted of a visual inspection in areas of significant leakage within the mall below the parking deck. We have enclosed five sheets of photographs to illustrate our observations”. The photographs referred to and attached to the report are numbered one through eight, inclusive.

[129] Mr. Wood goes on in his report to identify the most severe area of leakage were he reviewed the condition of structural steel and pre-cast concrete. These areas are identified as:

(1) Zellers store (picture 3 and 4);

(2) Service corridor north and west (picture 5);

(3) Main mall at ticket kiosk (picture 6 and 7);

(4) Mall area east of hotel (picture 8).

[130] Mr. Wood notes that there were several leakage areas within the Zellers store, the most severe being at gridline 5. Mr. Wood notes that, “At this location elaborate collection systems have been installed above the suspended ceiling to collect water infiltration through the roof structure”.

[131] With respect to the service corridor, north and west, Mr. Wood notes that, “Water leakage has occurred into the parameter corridor structure around the upper mall mostly at steel beam support locations, where there is a joint in the precast slabs”. As to the rusting of steel in this location, Mr. Wood notes that, “The steel is rusting, particularly on the top of the bottom flange; however, we are of the opinion that the rusting has not created any structural loss of beam capacity”.

[132] As to the main mall at the ticket kiosk, Mr. Wood notes that, “The steel beams along gridline 16 are in a location of significant previous water leaks”. With respect to the steel in this area, Mr. Wood states that, “Similar to other areas inspected, much of the exposed steel has only minor surface rusting with exposed original primer paint, where the fireproofing has fallen off due to water saturation”. Mr. Wood observed no deterioration of the precast slabs in the ticket kiosk location.

[133] As to the mall area east of the hotel, Mr. Woods reported, “Beams in areas of leaks over the Bargain Shop have fireproofing missing on bottom flange of steel beams. No loss of section of the steel beams was observed”.

[134] As a general conclusion and opinion, Mr. Wood states in his October 28, 2009 report, “Based upon the above, it is our opinion that our inspection revealed no visual structural concerns both with the structural steel or pre-stressed slabs”. Mr. Woods indicated in his report that his major concern was with the fire proof protection that had fallen away from the steel beams. As he notes on the third page of his report, “Our major concern is the loss of fireproofing on the bottom flange of steel beams that are required to have complete fire protection. We are recommending that in areas where the original fireproofing has fallen away that the top and bottom surfaces of the bottom flange be cleaned off and suitably sprayed with a fireproofing product that is not water absorbent”. In the last line of his report, Mr. Wood urged that the fireproofing “be conducted as soon as the contactor can be scheduled to complete repairs”.

[135] Attached to the report dated October 28, 2009 were eight photographs taken by Robert Wood during the course of his inspection of the mall on October 5, 2009. Picture 2 shows water ponding on line 5 over the steel beam on the rooftop parking. The notation on picture 4 shows surface rusting “on beams in the Zellers store”. Picture 4 refers to “minimal rusting on top of bottom flange” in the corridor west of the hotel. The notation on picture 6 reads as follows:

Exposed underside of right parking area. Precast slabs right of beam leakage location at ticket kiosk in mall. Gridline 16 effervescence stain at precast slab joints and fireproofing has fallen off bottom flange of steel support beam.

The notation accompanying picture 7 indicates that “missing fireproofing bottom flange of beam at ticket kiosk in mall. Insulation fallen off precast slabs”.

[136] Robert Wood traveled from Sault Ste. Marie, Ontario to Elliot Lake, Ontario to conduct his inspection of the mall. It was the evidence of Mr. Wood that he arrived at the mall by 9:00 a.m. and went to the mall office where he was met by Henri Laroue, the mall manager, and Bob Nazarian, the owner. Mr. Wood indicated that both Mr. Nazarian and Ms. Laroue were busy so he dealt with Dmitri Yakimov. Mr. Yakimov was born in the Ukraine (part of Russia) and came to Canada in 1990. He moved to Elliot Lake in 2007 and resided there until 2008. During his time in Elliot Lake he was employed by Bob Nazarian at the mall. His duties at the mall included identifying problem areas within the mall. Mr. Yakimov represented the mall when it was inspected by Fire Chief Paul Officer and Chief Building Official Bruce Ewald, which led to the order to remedy and the retention of Robert Wood to prepare the structural engineering report in 2009 with respect to the mall. Mr. Yakimov met Robert Wood at the mall on October 5, 2009 when Mr. Wood conducted his inspection of the mall. The evidence of Mr. Yakimov and Mr. Wood was at odds as to the amount of time Mr. Yakimov spent with Mr. Wood showing him throughout the mall. Mr. Yakimov’s evidence was that he spoke to Mr. Wood “very briefly”, showed him some problem areas and then went off to do his own tasks. The impression from the evidence of Mr. Wood is that Mr. Yakimov had more involvement, although he testified that Mr. Yakimov’s involvement ended after lunch and in the afternoon he was accompanied by a mall maintenance person he could not identify, and who primarily operated the ladder lift for him to go into the ceiling of the mall when this was required.

[137] The one area where Mr. Yakimov and Mr. Wood’s evidence was consistent was Mr. Yakimov’s concerns about the upper parking roof level which he expressed to Mr. Wood during his October 5, 2009 inspection. Mr. Yakimov also testified that he expressed concerns about the parking lot roof at the mall to the mall owner, Mr. Nazarian. Mr. Yakimov indicated that he made suggestions to Mr. Nazarian about how the roof could be repaired but his suggestions “were too expensive for him”, referring to Mr. Nazarian.

[138] As to what Dmitri Yakimov told Robert Wood about the roof, it was the evidence of Mr. Yakimov that he told Mr. Wood that when a car went over the roof he would feel it moving up and down. Mr. Yakimov thought that this movement was very unusual and shouldn’t be occurring. Mr. Yakimov had seen a crack in the floor and believed that the structure was shifting as a result of this crack. Mr. Yakimov testified that Robert Wood was responsive to the concern that he raised about the roof and the two of them took the elevator and traveled to the roof top where they stood in the area that Mr. Yakimov was concerned with. They stood in the door area above the kiosk area, which was ultimately the area that collapsed. Where Mr. Wood and Mr. Yakimov were standing was identified in the photographs entered as Exhibits 5-12 and 5-13. At this location, Mr. Yakimov repeated his concerns to Mr. Wood about the roof moving up and down with a bouncing movement. At one point in his evidence, Mr. Yakimov testified that he felt Mr. Wood was “very dismissive of his concerns”. But, at another point in his evidence, Mr. Yakimov described Mr. Wood as being “responsive” to his concerns, taking time to answer his questions and standing with him on the roof until vehicles went over the roof.

[139] Mr. Yakimov told him that Robert Wood described the movement on the parking deck roof as usual or normal, and that there had to be some movement and some flexing like that on the roof. As Dmitri Yakimov put it in his evidence, he was told by Mr. Wood that the roof “was designed to withstand that type of condition”.

[140] In his evidence, Robert Wood testified that he did not feel that the concern with the movement of the parking deck roof expressed by Mr. Yakimov was a problem. Mr. Wood described Mr. Yakimov’s concern as a “deflection of the deck in that area”. When asked about the meaning of “deflection”, Robert Wood gave this evidence:

A. Everything that’s loaded deflects. Normal – and normal practice, it’s normal practice to limit deflection to a certain amount that’s tolerable by the public and by – and the normal limitation of a structure like this would be the span divided by 300, which – and the span that we were looking at was around 30 feet or 34 feet, I know now. So, the deflection would have been about an inch. And he described to me that it deflected more in the middle of the span than at the outer parts and he repeated that evidence in front of the court here and – and it’s an exhibit, the photograph that he shows the center of the span deflecting more than the quarter points. I explained to him that it was a common occurrence and that it was totally normal.

Q. And why did you understand it to be a common occurrence and totally normal?

A. Because the beam – beams that span that distance deflect under load. We – we stood there for 10/15 minutes, watched three or four vehicles drive over the area and they were only small cars or small – small trucks. We basically could not observe the phenomenon that he was trying to describe.

Q. And how did the conversation with Mr. Yakimov end with respect to his concern?

A. I think he understood what I was explaining to him. He was a – he was a contractor, he’d been in buildings for quite a long time and I thought he fully understood what I explained to him.

Q. Now, when you use the term deflect, from a lay perspective, is it actually bending? Is that what you’re talking about?

A. Yes, when something’s loaded, it – it deflects.

Q. Bend – reflects and bends – are those words interchangeable?

A. Correct....

(Examination in-chief of Robert Wood, dated January 10, 2017)

[141] After they inspected what Mr. Wood described as, “Areas within the building that were identified within the municipality’s order to remedy”, Robert Wood and Dmitri Yakimov had lunch together. They were joined at lunch by Bruce Caughill, who is an engineer and architect. Both Mr. Yakimov and Mr. Wood recall Mr. Yakimov expressing his concerns again about the movement of the upper deck roof when vehicles would pass over it. It was the evidence of Dmitri Yakimov that Bruce Caughill told him that this was the way the mall was designed and that this was nothing to be concerned about. According to the evidence of Mr. Yakimov, Bruce Caughill told him that the mall was safe and Mr. Yakimov felt that Mr. Caughill “basically laughed off my concerns”. Dmitri Yakimov also testified that he felt that Bruce Caughill was impressive. As he put it “his credentials impressed me”.

[142] Robert Wood disagreed with the suggestion by Dmitri Yakimov in his evidence that the mall owner, Bob Nazarian was trying to keep Mr. Yakimov away from him. As Mr. Wood put it, “I remember him saying that and I don't believe it’s correct.” Overall, Dmitri Yakimov painted a very unfavourable impression of Bob Nazarian in his evidence. He left the impression that Mr. Nazarian was not interested in spending the money necessary to rectify the problems in the mall. Mr. Yakimov found Bob Nazarian “dismissive” about the concerns he raised to him regarding the mall and that Mr. Nazarian was not interested in disclosing the exact problems in the mall. When Peak Restoration did the roof repair work in 2008, it was Mr. Yakimov’s view that Bob Nazarian was using cheap material, including the blue skin membrane, as the most inexpensive way to solve the problem. Prior to Mr. Wood’s inspection there was work done at the mall to patch and repair drywall and replace damaged and stained ceiling tiles. Mr. Yakimov found this objectionable, stating, “I was pissed off because it was covering up what should have been looked at”. Then there was the whole matter of the roof repair contract for the mall submitted by the Empire Roofing and Restoration Inc. to Elnos to secure funding for roof repairs at the mall. As described by Mr. Yakimov, the Empire Roofing and Restoration entity was a company created by Bob Nazarian and his partner Alex Sennett. Mr. Yakimov testified that he submitted this roof repair contract (entered as Exhibit 73) to Mr. William Elliot at Elnos on behalf of Mr. Nazarian and reviewed the document only when in Mr. Elliot’s office. Mr. Yakimov described the numbers set out in the document as “an outright lie” and that they were “skewed” and “total hogwash”. Exhibit 73 is submitted as invoices for work Mr. Yakimov testified had not been completed on the roof of the mall. At page 10 of Exhibit 73 the summary of the total “invoiced” or spent on the roof of the mall is $1,738,788.45. Mr. Yakimov testified that Mr. Nazarian may have spent 25 percent of this amount. Mr. Yakimov clearly indicated in his evidence that this document being used to secure loan funding from Elnos was a total fraud and that he was upset by it because he had felt he had been used by Bob Nazarian.

[143] Robert Wood testified that before his inspection of October 5, 2009, he was at the mall on May 27, 2009 to examine office space occupied by the Retirement Living Algoma for the purpose of renovating that space. Mr. Wood testified that at that time he looked at the structural members within the Retirement Living Algoma and made the following observations:

The structural members above were covered with fireproofing. It looked in pristine condition. The slabs that were supported by the fireproofed steel beams looked in excellent condition with no signs of any damage. There was a part of the back area of the space that had foil-faced insulation covering the slabs. That appeared to be in normal condition. I saw absolutely nothing out of the ordinary when viewing the structural overhead.

[144] As to his inspection of the mall on October 5, 2009 and his subsequent report dated October 28, 2009, Robert Wood testified that he “took the retainer to review the structural areas identified within the order to remedy”. Mr. Wood went on to testify that, “My scope of work, I believed it was, and I think Mr. Fabris believed, was to review the structural component of the order to remedy that was issued to the owner”.

[145] The order to remedy violation dated September 26, 2009 issued by the Corporation of the City of Elliot Lake (Exhibit 46, Tab 4) was seen and read by Robert Wood at the time he conducted his inspection of the mall on October 5, 2009. Interestingly, with respect to the order to remedy, Robert Wood testified that:

I’ve never seen an order to remedy to an occupied building. I’ve seen orders to remedy to many buildings in Sault Ste. Marie that are so dilapidated that the Building Department wants to have them fixed and they issue an order of remedy to either tear it down or have it suitably fixed. A building to his magnitude, I’ve never seen an order to remedy before.

[146] With respect to what he looked at in the mall during his October 5, 2009 inspection, it was the evidence of Robert Wood that Dmitri Yakimov walked him around the areas of concern that were listed in the order to remedy. As Mr. Wood put it, “We inspected the areas within the building that were identified – within the Municipality’s order to remedy”. When asked whether he inspected any areas other than those identified as concerns in the order to remedy, Mr. Wood stated,

After the completion of that, I did walk through the mall and look at – to see if there were other areas of concern, but I didn’t specifically look at any other areas in detail that I looked at these areas that had been identified.

[147] Mr. Wood took with him to the mall for the inspection on October 5, 2009 a camera, tape measure, clipboard, pencil and pen. Mr. Wood used a flashlight in his inspection but could not recall if the flashlight was one he brought with him or one supplied by the mall maintenance staff. Mr. Wood took some pictures of what he described as the worse areas that he saw. Mr. Wood testified that you don't take pictures of everything you see on an inspection, rather, “You take pictures to illustrate the worse portions of what you are inspecting”. Mr. Wood took notes to, “Assist me in highlighting what was to be in my final report”. Mr. Wood made no measurements with respect to the steel beam including measurements to ascertain loss of section or capacity of the beam. Mr. Wood had access to a caliper at MRW and to an ultrasonic tester at MRW, which could have assisted him to measure loss of section but he did not avail himself of these tools.

[148] I will comment further on the evidence of Robert Wood and the difficulties with his evidence later in this judgment, but Mr. Wood’s overall conclusion was that the Algo Centre Mall was structurally sound. The rusting of the steel structure that Mr. Wood observed was primarily surface rusting and he indicated in his evidence that, “I looked at several areas on and above where I was directed and on many of them were predominately primer painted with no signs of rust or any corrosion”.

[149] After conducting the October 5, 2009 inspection, the principal concern that Robert Wood had about the mall was that some of the steel structure was losing its fireproofing, and as a result of the danger that this posed, it had to be remedied without delay. Robert Wood testified that, “Based on my professional opinion, I was looking at nothing more than some recent leaks that had washed fireproofing off the bottom flange of some of the main steel members of the building”.

2012 Inspection of the Algo Centre Mall by Robert Wood of MRW Consulting Engineers

[150] It is clear that the engineering licence of Robert Wood with the Professional Engineers of Ontario was suspended when the attended at the mall on April 12, 2012. The evidence is also clear that Robert Wood did not disclose this fact, either to the owner of the mall, Bob Nazarian, who retained his services, to the mall manager, Rhonda Bear-Lendt or to Terry Neave, the maintenance manager of the mall who took Mr. Wood on his tour of the mall on April 12, 2012. It is also clear that no mention of his licence suspension was made in the actual report or reports that were generated as a result of Mr. Wood being retained by Mr. Nazarian.

[151] Bob Nazarian testified that the purpose for wanting to obtain a structural report and an electrical and mechanical report of the mall in 2012 was related to financing, for “getting a new mortgage”, as Mr. Nazarian put it. Robert Wood also understood that was the purpose of the 2012 report, that it was related to financing. Greg Saunders, who was the supervising engineer at MRW and who supervised the work of Robert Wood while his licence was suspended, also indicated that he understood that the owner of the mall was refinancing and that was the purpose of the 2012 inspection and report.

[152] Terry Neave had been employed as the maintenance manager of the mall only for a short period of time, approximately one month, when Robert Wood attended at the mall on April 12, 2012 to inspect the mall. Mr. Neave testified that it was not raining outside and that the mall was not leaking on April 12, 2012 when Mr. Wood inspected the mall. That corroborates the evidence of Robert Wood who gave the same evidence. At the direction of the mall manager, Mr. Neave was asked to show Mr. Wood around the mall on April 12, 2012. Mr. Neave believed his mandate was to take Robert Wood to the worse areas in the mall as far as leakage was concerned. Mr. Neave took Mr. Wood to the bad spots throughout the mall; as he put it, “I was the one taking him from spot to spot”.

[153] Terry Neave believes that he was with Robert Wood for approximately three hours on April 12, 2012. He took Mr. Wood to the corridor. He showed Mr. Wood the expansion joints that were leaking badly behind the library. Mr. Neave testified that Robert Wood had a camera, a clipboard and a flashlight with him. Mr. Wood used the flashlight to look at the expansion joints on the beams and posts. They continued down the corridor at which point Mr. Wood pointed to a beam where fireproofing had come off and had to be replaced. This was in the corridor behind the Dollarama store and behind the library.

[154] It was the evidence of Terry Neave that Robert Wood spent one hour of his total time in the Zellers store, which had several bad locations as far as leaking was concerned. Mr. Neave got a rolling staircase and Mr. Wood went into the ceiling space shining his flashlight up and down beams. Mr. Neave testified that at one point in time Mr. Wood used his thumbnail to pick at the rust on a beam in Zellers. Mr. Neave questioned Mr. Wood about this and according to Mr. Neave, Robert Wood told him that he was looking to see if there was just surface rust or whether there was any penetration of the rust. Mr. Neave estimates that there were 10 to 12 water collection bladders up in the Zellers store on the day Mr. Wood conducted his inspection. There were also numerous ceiling tiles missing and Mr. Wood was able to gain access above the ceiling through existing holes in the ceiling without removing any ceiling tiles.

[155] After the Zellers store, Mr. Neave and Mr. Wood examined the common hallway and the Bank of Nova Scotia. It was Mr. Neave’s evidence that at the Bank of Nova Scotia, Mr. Wood went up into the ceiling and examined the area where the beams met the post. Mr. Wood scraped off insulation in that area using a T-bar to check the level of rust on the beams in that area. Mr. Neave testified that the pictures in Exhibits 5-68, 5-69 and 5-70 depicted the state of the former Bank of Nova Scotia space when Mr. Wood inspected it on April 12, 2012.

[156] Mr. Neave testified that Mr. Wood went into the electrical room which Mr. Neave describes as having “some really bad leakage over the electrical panel in that area”. According to Mr. Neave, Robert Wood went into the ceiling area in the electrical room and looked at the beams. While they travelled the public hallways to go from place to place, Mr. Wood would examine these areas and went up into a ceiling at an expansion joint and looked down to bulk heads during the course of his inspection.

[157] It was the evidence of Terry Neave that behind the kiosk area there were ceiling tiles missing and Mr. Wood went up into the ceiling area and looked down the bulk head. Mr. Neave testified that Mr. Wood was interested in the product being used to repair the roof and as a result they went to the boiler room outside where the roofing product was being stored. Mr. Neave testified that after going to the boiler room, Mr. Wood told him that he was going to take some pictures on the roof and that he didn’t need him any longer. At that point, Mr. Neave left Mr. Wood and did not see him after that.

[158] In his evidence, Mr. Neave candidly admitted that he forgot to take Robert Wood to several areas within the mall that were leaking, particularly, the Northern Reflections store or the public library. Mr. Wood did not ask Terry Neave to go into these areas. Mr. Neave described Mr. Wood as “responsive” when he was with him for the mall inspection. Mr. Wood answered any questions that Mr. Neave posed to him and did not refuse to examine areas which Mr. Neave wished to show him. According to Mr. Neave, Mr. Wood was free to go to any area of the mall that he wished and no restrictions were placed on him as to where he could go or what he could see in the mall. Mr. Neave was clear in his evidence that Mr. Wood was told that the leaking roof was being repaired and Mr. Neave explained the procedure contemplated for the repairs to Mr. Wood. Terry Neave was aware that a piece of concrete had fallen through the ceiling at the Hungry Jack Restaurant on the second floor near the food court area of the mall. Mr. Neave believed this incident was after Mr. Wood’s inspection of the mall but in any event, Mr. Neave did not tell Robert Wood about this event when he conducted his inspection of the mall on April 12, 2012.

[159] Robert Wood believes that he became involved with the 2012 inspection of the mall through a phone call from Bob Nazarian and his son Levon Nazarian. Mr. Wood was advised by the Nazarians that their bank was looking for current structural, mechanical, electrical and environmental reports with respect to the Algo Centre Mall in Elliot Lake, Ontario. Mr. Wood attended at the mall on April 12, 2012 to do an inspection. He did not bring with him a caliper or any ultrasonic equipment that could test for loss of sections in the structures within the mall. The only measuring device that Mr. Wood brought with him on his inspection was a measuring tape, which Mr. Wood acknowledged is “a pretty crude way to measure”.

[160] Mr. Wood agreed in his evidence that he had a familiarity with the mall as a result of his 2009 inspection and report. However, Mr. Wood failed to bring his 2009 report or the pictures attached to it with him in on his 2012 inspection. Mr. Wood acknowledged that when he went to the mall in 2012 he went with the knowledge that the mall had leakage problems. He gained that knowledge from his 2009 inspection of the mall. In his evidence, Mr. Wood had difficulty pointing out exactly where he traveled within the mall in 2012 or exactly the areas that he inspected. As Mr. Wood stated in his evidence, “I can’t specifically recollect every area that I looked at, but we did an extensive review of that space”.

[161] Robert Wood acknowledged in his evidence conducting an inspection of the Zellers store. Mr. Wood testified that he saw bladders in the Zellers store but that he didn’t see any water on beams. Mr. Wood was told by Mr. Neave that the area within Zellers was leaking. Robert Wood testified that he saw “similar minor delamination within Zellers”, similar referring to the condition of the beams he saw in the Bargain Shop. Robert Wood testified that he was then taken by Mr. Neave into the space formerly occupied by the Bank of Nova Scotia. Mr. Wood noted in his evidence that he saw loss of fireproofing on the beam in that area, which would have been attributable to previous water leaking. Mr. Wood did not mention this in his 2009 report even though he was specifically looking for areas of missing fireproofing when he did his inspection in 2009. Contrary to the evidence of Terry Neave, Robert Wood has no specific recollection of scraping a portion of the beam in the Bank of Nova Scotia space.

[162] Mr. Wood testified that he observed hoses in the electrical room and that he was told by Terry Neave that there was a leakage problem from the refrigeration in the Foodland Store that was directly above the electrical room and that this has been rectified. Mr. Wood accepted Mr. Neave’s view on this without the need for further investigation on his part. Mr. Wood testified that he knew there was a leakage problem in the library as a result of the information given to him by Mr. Neave but has no recollection of inspecting the library and accepts the evidence of Terry Neave that he did not take Mr. Wood into the library area.

[163] In his 2009 report, Robert Wood made the following comment on page 3, “Beams in areas of leaks over the Bargain Shop have fireproofing missing on bottom flange of steel beams. No loss of section of the steel beams was observed.” In his 2012 inspection, Robert Wood did not go into the ceiling at the Bargain Shop to look at the condition of the steel beams. Rather, he looked at the beams from the ground, which placed him approximately 15 feet from the beam. Mr. Wood described his rationale for not going up into the ceiling at the Bargain Shop “because it was not brought to my attention there was any leakage in that area”.

[164] Perhaps the most troubling area that Mr. Wood did not pay attention to during his 2012 inspection of the mall was the area in the food court and surrounding the kiosk area. The major structural beam in that area is what has been identified as Beam #1, which is the beam that ultimately gave way and led to the partial collapse of the mall. Photographs of this beam were attached to the October 28, 2009 report as photographs 6 and 7. On page 2 of the report under the heading “Main Mall at Ticket Kiosk”, Mr. Wood notes, “The steel beams along line 16 are in a location of significant previous water leaks. A new roof deck drain appears to have been extended into this area to assist in the leakage control”. Mr. Wood testified that on April 12, 2012 he saw no evidence of leakage in that area and therefore with respect to the area in the food court he examined the beams from the ground through missing ceiling tiles without actually going above the ceiling to inspect. As Mr. Wood stated, he saw no reason to go up above the ceiling in the food court area, “I had no reason. Mr. Neave didn’t tell me it was leaking.” Mr. Wood testified that there were no ceiling tiles in the food court area and that he “could see the beams covered in fireproofing. I could see the underside of the parking deck with the foil faced insulation”.

[165] With respect to the kiosk lottery booth area, Mr. Wood testified that he did not see evidence of leaks in the lottery booth area and saw no reason to investigate the beams in that area including Beam #1 which were above the ceiling tile. With respect to this there was the following exchange between Mr. Wood and Crown counsel:

Q. All right. And so the beam was one of the worst areas you saw in 2009?

A. It was one with the most fireproofing removed. I wouldn’t call it the worst.

Q. Well – we went through this yesterday, but although your report didn’t reflect it, your notes reflect that there was delamination on that beam.

A. Correct.

Q. So, that was – that was bad – that was more than surface rust.

A. Yes.

[166] Despite making these conclusions in 2009, Mr. Wood did not go up into the ceiling to observe Beam #1 in the food court, lottery booth kiosk area in his 2012 inspection. He did not do so because on the day of his 2012 inspection “there was no leaking in that area”. In response to that, the following exchange in his evidence took place between Robert Wood and Crown counsel:

Q. So, all you would have had to do at that point, on April the 12th, 2012, is get a ladder, an elevating dev – something to get you up there, push a ceiling tile aside and have a look.

A. Correct.

Q. That’s all you had to do.

A. Correct.

Q. And you didn’t do that.

A. I didn’t do that.

Robert Wood went on in his evidence to say, “I made a judgment that there was no leakage in that area and, therefore, my time was better spent looking at other areas”.

[167] In light of the fact that his engineering licence had been suspended, Robert Wood saw his role in viewing the mall on April 12, 2012 as one of inspector. Mr. Wood testified that in this role of inspector he believed that he had no lesser duty to the public than he had as a licenced engineer and that his duty to the public in respect to safety was paramount. Mr. Wood did not do any measuring to the structural elements to determine loss of section during his 2012 inspection of the mall.

[168] Entered as Exhibit 6 are the photographs taken by Bonnie Ladell on April 13, 2012, the day after Mr. Wood attended at the mall. These photographs and the evidence of Bonnie Ladell were referred to earlier in this judgment. The pictures taken by Ms. Ladell and, in particular, pictures 6-18, 6-19, 6-20, showing the steel posts on the outside walkway of the mall were examined by Mr. Wood during his evidence. Mr. Wood acknowledged that the picture of these posts showed that the posts had “been compromised”. Mr. Wood testified that he looked at random areas outside of the mall and that he “missed these holes”, referring to the holes in the posts as evidenced by the pictures taken by Ms. Ladell. Mr. Wood testified that he looked at “random areas. I did not look at the base of the column”. As an inspector with a background in engineering, Mr. Wood did not see a single post with a hole in it on April 12, 2012, whereas the layperson, Bonnie Ladell, saw posts with holes in it as documented in her photographs entered as Exhibit 6. As to the level of corrosion in the outside walkway of the mall, Robert Wood indicated in his evidence, “It’s an exterior walkway, it’s what you’d expect”.

Report (Reports) from M.R. Wright and Associates Co. Ltd. dated May 3, 2012

[169] As was his usual practice, Robert Wood produced a handwritten report as a result of his inspection of the mall and gave it to his assistant, Tracy Patrick, to type. As was her usual practice, Tracy Patrick printed the pictures taken by Mr. Wood on his inspection off of the digital camera. As was the usual practice, all the photographs were given to Mr. Wood and he would decide which photographs would go into the report and what typewritten captions of description would accompany each picture.

[170] This practice led to the first report dated May 3, 2012 under the re: line “Structural Condition Inspection Algo Centre Mall, Elliot Lake, Ontario”. That first report was entered as Exhibit 81, Tab 6. Exhibit 81 was a compilation of documents referred to by Tracy Patrick in her evidence. The first report contained a full first page and a second page with one short paragraph that read, “We trust that you will find the enclosed adequate for your consideration and please contact us if we can be of further assistance.” Appended to the first report are 14 pictures marked 1 to 14, inclusive.

[171] The first report dated May 3, 2012 bore the signature of R.G.H. Wood and G.J. Saunders. Under the signature of Mr. Wood was the title “President”. Under the signature of Mr. Saunders was the title “Manager of Engineering”. There is no engineering seal affixed to the report. Due to the suspension of the engineering licence of Robert Wood he did not sign the report as an engineer but rather as President, meaning President of M.R. Wright & Associates Co. Ltd., which is the corporate title that he held at the time of the report. Mr. Wood did not sign the report as an “inspector” nor is there any reference in the report that Mr. Wood was engaged in the project as an inspector and not a licenced engineer.

[172] Greg Saunders signed the first report dated May 3, 2012 because he was required to supervise the work of Robert Wood because of Mr. Wood’s licence suspension. Mr. Saunders testified that he had been an engineer since 1984 and with MRW from 2001 until it was purchased by Tulloch Engineering in 2012 after the partial collapse of the mall. By 2009, Mr. Saunders was a share owner in MRW, holding 20 percent of the shares while Robert Wood held 80 percent of the shares in the company. After the suspension of the engineering licence of Robert Wood in 2011, Mr. Saunders was the supervising engineer at MRW and was the engineer in charge of operations as well as the engineer responsible for supervising the work of Robert Wood while he was under suspension. Mr. Saunder’s recollection was that clients of MRW were not advised of Mr. Wood’s change of status, which on the evidence was consistent with the way Mr. Wood conducted himself in the mall inspection of 2012.

[173] Greg Saunders in his evidence described Robert Wood as someone who was difficult to supervise. Mr. Wood was a man of entrenched habits and a man who worked on his own a great deal of time making him difficult to monitor and supervise. Greg Saunders described Robert Wood as a man that he trusted. It was apparent in the manner that Greg Saunders gave his evidence and his responses to questions asked of him that he had enjoyed a good working relationship with Robert Wood and has respect for Mr. Wood as a trusted colleague.

[174] Greg Saunders had never been to the mall in Elliot Lake, Ontario. He had, previous to 2012, reviewed the work of employees of MRW who had done work at the mall, such as Colin Liddiard who has prepared environmental reports which Mr. Saunders reviewed and signed off on. In early May 2012, Greg Saunders received a telephone call from Robert Wood who indicated that he had a letter for him to sign which he needed to go out the following day. Greg Saunders met with Robert Wood on May 3, 2012. It was at that time that the first report dated May 3, 2012 (Exhibit 156, Tab 2) was reviewed by Greg Saunders in the presence of Robert Wood. Although Mr. Saunders ultimately signed the first version of the report, Robert Wood acknowledged in his evidence that he was entirely responsible for what was in the May 3, 2012 report and for the words that were used in the report. Mr. Wood did not bring to Mr. Saunders the contents of his previous 2009 report when Mr. Saunders reviewed the report nor did Mr. Saunders inquire about any previous structural inspections or reports that Mr. Wood had done relating to the mall. Mr. Saunders reviewed the 14 pictures attached to the first May 3, 2012 report and the captions related to those pictures. Mr. Saunders indicated in his evidence that his meeting with Robert Wood on May 3, 2012 lasted for 45 minutes. Mr. Saunders indicated in his evidence that he asked Mr. Wood questions and that Mr. Wood responded to his questions. For example, Mr. Saunders asked about picture 7, which showed yellow tarps suspended from the ceiling in Zellers. According to Mr. Saunders, Robert Wood replied that there had been some leakage in Zellers but the day he inspected the mall everything was dry. With respect to picture 8, which depicts the bottom flange of the parking deck beam in Zellers, Mr. Wood described this to Mr. Saunders as surface rust with very little section loss. At the May 3, 2012 meeting Mr. Saunders didn't feel a need to review the electronic file relating to the Algo Centre inspection. He indicated in his evidence that, “I didn’t have any concerns about putting my seal on the report”. Although he signed the first version of the May 3, 2012 report without affixing his seal, as far as Greg Saunders was concerned, his signature on the report was as good as putting his seal on it. Mr. Saunders signed the first report, as drafted by Robert Wood, without alterations.

[175] The first version of the May 3, 2012 report started off as follows in the first paragraph:

As per your request we met with your maintenance staff on Thursday, April 12, 2012 to inspect the above noted mall complex. We are familiar with the mall in Elliot Lake from previous inspections of the parking deck structure and completion of steel beam fireproofing conducted for the Building Department in 2009.

[176] The report goes on to state in paragraph 4:

Our inspection revealed evidence of rusting on the structural steel members in areas where the parking deck is leaking as shown in pictures 1 through 10. The areas of open walkways show in pictures 11 through 15 also have areas with surface rust.

[177] Paragraph 5 of the report states as follows:

All beams inspected had little loss of section and we would consider the members still structurally sound. The ongoing leakage from the parking deck is of particular concern in the areas of Zellers, and the expansion joint located along the south wall of the Algo Inn, over the municipal library. As per pictures 5 and 6 we noted vehicular impact on wall siding in this area, that may also added to the problem. [Emphasis added]

[178] Paragraph 6 of the report states that:

We understand that the mall is conducting further waterproofing maintenance work on the parking deck this spring. The upper surface waterproofing is considered only a temporary solution. A permanent repair needs to be budgeted for to suitably protect the structure.

[179] The first version of the May 3, 2012 report concludes by indicating:

It is our opinion that the observed rusting at this time has not detrimentally changed the load carrying capacities of the structure, and no visual signs of structural stress were observed.

(Exhibit 81, Tab 6)

[180] This first report dated May 3, 2012 went out to Rhonda Bear-Lendt by email from Greg Saunders on May 4, 2012 at 9:28 a.m. as it appears in a copy of the email found at Exhibit 81. Tab 6.

[181] Rhonda Bear-Lendt testified that after receiving the first structural report dated May 3, 2012 from MRW, the owner of the mall, Bob Nazarian directed her to request to have the wording in the fifth paragraph of the report changed. As a result of the instructions, she sent an email dated May 9, 2012 at 10:32 a.m. to Bob Wood. A copy of that email was entered as Exhibit 81, Tab 7 and reads as follows:

Hello Bob – can you please remove the wording “particular concern” from the report? Please change and forward as soon as possible? Most appreciated.

[182] As was the usual practice this email was not received directly by Bob Wood but was retrieved and printed for him for his review. As a result of the request from the owner of the mall, paragraph 5 of the first report was changed and the change generated a second report dated May 3, 2012. In the second report, paragraph 5 reads as follows:

All beams inspected had little loss of section and we would consider the members still structurally sound. The leakage through the parking deck has caused surface rusting of the structural steel in the areas of Zellers, and the expansion joint located along the south wall of the Algo Inn, over the municipal library. As per picture 5 and 6 we noted vehicular impact on wall siding in this area, that may also have added to the problem.

[183] In comparing the first report of May 3, 2012 to the second report of May 3, 2012 it is clear that the word “ongoing” has been removed in the second report to describe the leakage from the parking deck and that the balance of the second sentence in the fifth paragraph has been reworded to remove the words “of particular concern” and to describe the rusting as “surface rusting”.

[184] There was also an adjustment in the photographs that were attached to the first report in that the photograph marked as photograph 7 in the first report showing yellow tarps suspended from the ceiling in the Zellers store was removed entirely from the second report. Picture 8 in the first report became picture 7 in the second report and the second report contained 13 photographs whereas the first report contained 14 photographs. As to the removal of picture 7, Rhonda Bear-Lendt testified that she recalled having a conversation with Bob Nazarian who told her that the picture of the yellow tarps was not flattering and served no purpose. Ms. Bear-Lendt recalls Bob Nazarian directing her to request Mr. Wood to remove that picture but she has no recollection of speaking to either Tracy Patrick or Bob Wood about it, although she assumes that she must have because the objectionable photograph was removed from the second report. Tracy Patrick testified that she recalled relabeling the pictures in the second report on the direction of Robert Wood. The second report dated May 3, 2012 was forwarded as a “revised structural condition inspection” to Rhonda Bear-Lendt by Tracy Patrick by email dated May 10, 2012 at 8:37 a.m. (Exhibit 81, Tab 8)

[185] There was one further alteration to the structural inspection report from MRW dated May 3, 2012 which resulted in a third report dated May 3, 2012. Rhonda Bear-Lendt testified that subsequent to receiving the second report she had a further conversation with Bob Nazarian who directed her to request that the photo of the beam (photo 7 in the second report) be removed from the report on the basis that it was an unflattering picture which served no purpose for the report. By email dated May 11, 2012 at 10:34 a.m. Rhonda Bear-Lendt forwarded an email addressed to Tracy Patrick and Robert Wood, which read as follows:

Hello Bob – Mr. Nazarian is inquiring about the photo of the rusted beam in Pic 7 and would like to have the photo removed from the report. Would you please revise and send back?

(Exhibit 81, Tab 9)

[186] Tracy Patrick testified that she reached Robert Wood in response to this email and request with respect to picture 7 and on Mr. Wood’s instructions to her she removed picture 7 from the May 3, 2012 report, which in fact resulted in a third version of the May 3, 2012 report which appears at Exhibit 81, Tab 9. The third version of the report, with picture 7 removed, was forwarded to Rhonda Bear-Lendt by Tracy Patrick by email dated May 11, 2012 at 2:22 p.m. which reads as follows:

Rhonda, I got a hold of Bob and here with the revised report plus revised pics.

(Exhibit 81, Tab 9)

[187] The third version of the structural report dated May 3, 2012 from MRW has picture 7 removed, which is the picture with the caption “heavily oxidized bottom flange of parking deck beams in Zellers, no significant loss of section at this time”. This is the picture that Rhonda Bear-Lendt described in her evidence as “the ugly beam”. Interestingly, in the third version of the report (Exhibit 81, Tab 9), the fifth paragraph of the report reads exactly as it did in the first report, with the words “ongoing leakage” and “of particular concern” being left in the third report. None of the witnesses that testified had any explanation as to how this occurred. The evidence is that the second version of the May 3, 2012 structural report was in the file of the Business Development of Canada (the bank that Bob Nazarian was seeking financing from) when it was seized. That report has the words “ongoing” and “of particular concern” removed when describing the leakage. There are 13 pictures attached to the report found in the Business Development Bank file. The picture of the yellow tarps in Zellers was removed from the report but the picture of the rusted steel beam in Zellers remained in it, identified as picture 7. The report found in the files of the Business Development Bank was marked as Exhibit 85.

[188] It is clear from the evidence that Greg Saunders, who was to be supervising the work of Robert Wood and who was to sign his reports, had no knowledge of the revisions to the first May 3, 2012 report. Mr. Saunders testified that he signed only the first report and that he only became aware that there were different versions of the May 3, 2012 report when he was interviewed by the OPP after the partial collapse of the mall. Tracy Patrick testified that she never personally advised Greg Saunders that there were revisions to the first May 3, 2012 report. It is clear from the evidence that Greg Saunders did not sign either the second or the third version of the May 3, 2012 report. Tracy Patrick testified that she never had Robert Wood sign on the signature page on either the second or third reports. It is clear on the evidence that the second page, which was the signature page of the first report, was re-used as the signature page on the second and third revised May 3, 2012 structural reports from M.R. Wright & Associates Co. Ltd.

[189] Robert Wood gave evidence that Tracy Patrick would not have made changes to the May 3, 2012 report unless she was directed by him to make those changes. Mr. Wood testified that in the 30 or so years of working with Tracy Patrick she never changed a report or released a report without his approval. Mr. Wood testified that he thought that Greg Saunders was going to stamp the second version of the May 3, 2012 report. It is difficult to appreciate how this would have occurred when Mr. Wood did not discuss the changes to the report with Mr. Saunders or obtain his consent to the changes in the report. Suspicion about Mr. Wood’s evidence on this point is further raised by the following exchange between Crown counsel and Robert Wood:

Q. Somehow, by osmosis, Saunders was supposed to know to pull the report off the computer, stamp it and send it to the finance company, is that what you’re suggesting to us, sir?

A. Yes.

[190] As to the signature page, page 2 of the May 3, 2012 report, not being changed in the second and third version of the report, Robert Wood stated that, “It happened that way. I don't believe it was made to do that.” When Crown counsel suggested that this did not happen “by accident”, Mr. Wood agreed with that suggestion. When pressed, Mr. Wood acknowledged that he was content that the second report go out in the manner that it did, without changes to the signature page.

[191] With respect to the removal of the photograph of the rusted beam in Zellers, Mr. Wood acknowledged in his evidence that he takes photographs of the worst conditions that he sees on an inspection. Mr. Wood testified that he has no recollection of discussing the removal of picture 7 with Tracy Patrick or instructing her to remove picture 7 from the structural report. Mr. Wood did agree that the removal of picture 7 would be completely misleading with respect to the results of his inspection and what he observed at the mall, as evidenced in the following exchange with Crown counsel:

Q. So, in removing such a photograph based on what you saw on the day in question would – would be extremely misleading of what you saw.

A. Absolutely.

[192] With respect to changes in paragraph 5 of the May 3, 2012 report, Mr. Wood agreed with the suggestion that the word “ongoing” has a past and a present component but disagreed with the suggestion that the removal of the word “ongoing” from the report deprived readers of the report from the knowledge that the leakage in the mall was both past and present. It was the evidence of Robert Wood that he removed the word “ongoing” from the structural report “to make the sentence read better and more concisely”. Mr. Wood testified that by removing the word “ongoing” from the fifth paragraph of the report was more concise and the report “was more in accordance with what I had seen”.

[193] Robert Wood indicated that he believed it was reasonable to remove the reference to “ongoing leakage” in his report and the yellow bladder picture in Zellers because he was led to believe that the parking deck roof was being repaired. Mr. Wood testified that, “I seen the material. The City Building Department was reviewing it. I had no reason to believe that it was anything but a proper repair”. Mr. Wood acknowledged in his evidence that the leakage to the roof represented a risk to the structure and stated in his evidence that, “I indicated that a permanent solution needed to be budgeted for, which is what the mortgage company would be interested in”. Robert Wood went on to state in his evidence that, “I was told that it wasn’t going to be still leaking once they’d done this temporary report but they needed to budget for a permanent solution”. Robert Wood testified that the May 3, 2012 structural report reflected this fact.

[194] Robert Wood indicated in his evidence that it was his view that the changes he made from version 1 to version 2 in the May 3, 2012 structural report “did not change the conclusion of the report”. Mr. Wood acknowledged in his evidence that the report intended the reader to conclude that the Algo Centre Mall in Elliot Lake, Ontario was structurally sound. Mr. Wood testified that “it’s what I believed” and that he intended that all versions of the May 3, 2012 report convey that to the reader.

[195] For his part in reviewing and signing the first version of the May 3, 2012 structural report on the mall, Greg Saunders was disciplined by the Professional Engineers of Ontario for not placing his seal on the first version of the May 3, 2012 report and for not supervising Robert Wood more closely. Mr. Saunders was fined and had his licence suspended for a period of seven months by the Professional Engineers of Ontario.

Evidence of Robert Wood in General

[196] In his submissions to the court, defence counsel spent very little time discussing the evidence of Robert Wood. The Crown, on the other hand, made the evidence of Robert Wood its focal point to suggest that Mr. Wood fell well below the standard of care expected by a reasonable engineer and to suggest that he showed wanton and reckless disregard for the lives and safety of others. Certain explanations by Robert Wood for actions he took either with respect to his inspection of the mall or the reports generated from those inspections were difficult to accept. Crown counsel, Marc Huneault, aggressively and effectively challenged Mr. Wood on details in his evidence and did a masterful job in exposing the inconsistencies and incredulity of many aspects of the evidence given by Robert Wood.

[197] In his evidence, Robert Wood attempted to minimize the extent of his knowledge about the ongoing and long-standing leaking at the mall. Mr. Wood gave evidence that based on his professional opinion, “I was looking at nothing more than some recent leaks that had washed fireproofing off the bottom flange of some of the main steel members of the building. I had no indication to me that this was something more than a recent occurrence.”

[198] Several times during his evidence, Robert Wood repeated the theme that the structure had been exposed to what he “presumed to be new leakage” and that he was dealing with a building that “had apparently started to leak”.

[199] In cross-examination, Mr. Wood acknowledged that he had read the order to remedy from the Corporation of the City of Elliot Lake and that order to remedy informed him of the scope of work expected of him in his 2009 inspection of the mall. Page two, Schedule “A” of the order to remedy, dated September 25, 2009, reads as follows:

Deficiency: an inspection has revealed damaged fireproofing materials and/or excessive rust due to long-term water infiltration on structural beams in the following areas:

(a) Above the lottery ticket booth adjacent the food court;

(b) Above the Dollarama store

(c) Above the Bargain Shop

(d) Above the service hall behind the Dollarama;

(e) Above the service corridor behind the library; and

(f) Above the main corridor in front of the new mall office.

Further to this it was noted that there was evidence of numerous leaks (more than 20) above the Zellers Store and the evidence of rusted structural components outside in front of the Goodland and the main entrance to the mall. [Emphasis added]

[200] As to the order to remedy itself, which the City of Elliot Lake issued on September 25, 2009, Mr. Woods indicated:

I’ve never seen an order to remedy to an occupied building. I’ve seen orders to remedy to many buildings in Sault Ste. Marie that are so dilapidated that the Building Department wants to have them fixed and they issue an order to remedy either tear it down or have it suitably fixed. A building of this magnitude, I’ve never seen an order to remedy before.

[201] Despite this evidence, Mr. Wood would not acknowledge that in the Algo Mall he was dealing with something unusual or out of the ordinary and had to approach the 2009 inspection with this in mind. In cross-examination, Mr. Wood was asked, “So you would have known at that point in time you were dealing with something highly unusual.” Mr. Wood’s response was, “I was dealing with a building that had apparently started to leak.”

[202] In attempting to explain the comments in the order to remedy that set out the words “long-term water infiltration on structural beams”, Mr. Woods attempted to explain this by indicating to the court that he did not know what “long-term” meant in describing the water infiltration in the order to remedy with respect to the mall. This exchange in cross-examination is as follows:

Q. And it says very clearly that this was not a new problem; that the – the water infiltration was – had been occurring long-term.

A. That’s what it says.

Q. What? You can’t believe the City now?

A. It says long-term – does that mean months? Days?

Q. Well, you’re not suggesting for a moment are you, sir, that you read that thinking it was leaking for days.

A. I don't know what it meant.

[203] It is difficult to accept that an engineer with Mr. Wood’s experience (he had been an engineer since January 1974), would not know what the term “long-term water infiltration on structural beams” meant in an order to remedy.

[204] In his own report, dated October 28, 2009, produced as a result of his October 5, 2009 inspection of the mall in Elliot Lake, Robert Wood writes on page two, “From the mall ceiling tile it is evident that many leaks have occurred over the years.” When pressed in cross-examination to explain this statement in light of his evidence at the trial that the leaks in the mall were a recent occurrence, Robert Wood testified that, “I’m reporting that in prior years to me being there, there had been leaks. But I have no idea that it had gone on for a 30-year period.” Mr. Wood made no inquiries or investigation to find out how long in fact the mall had been leaking.

[205] I find it difficult to accept Mr. Wood’s evidence that he believed the water infiltration in the mall was a recent occurrence. He must have known otherwise given the comments on page two of his October 28, 2009 report and given what is set out in the order to remedy, which he acknowledged informed his work relating to his 2009 inspection and report.

[206] In his 2009 report, Robert Wood identifies the steel beams along gridline 16 (in the main mall at the ticket kiosk) as an area of concern with respect to water leakage. On page two of his October 28, 2009 report, Mr. Wood states, “We attempted through inspection to review the condition of structural steel and precast concrete in the most severe areas of leakage.” The report goes on to specifically discuss the Zellers store, the service corridor north and west, the main mall at the ticket kiosk and the mall area east of the hotel. With respect to the “main mall at ticket kiosk”, Mr. Wood states in his 2009 report,

The steel beams along Line 16 are in a location of significant previous water leaks. A new roof deck drain appears to have been extended into this area to assist in the leakage control. Similar to other areas inspected much of the exposed steel has only minor surface rusting with exposed original primer paint, where the fireproofing has fallen off due to water saturation. In this area on the north side of the beams the insulation bolts have fallen away exposing the underside of the precast slabs. Signs of leakage shown in picture 6 appear to coincide with the four-foot spacing of the joints in the precast concrete. No deterioration of the precast slabs were observed.

[207] We know from the evidence of Robert Wood that it is his practice to take photographs of only the worst and most significant areas. Two pictures of the kiosk area in the main mall (pictures 6 and 7) were attached to the October 28, 2009 report. The area at the ticket kiosk was significant enough to be an area to warrant specific comments in Mr. Wood’s report and to have photographs taken. Despite this, in his evidence at trial, Robert Wood disagreed with the suggestion that in terms of corrosion on the steel that gridline 16 at the ticket kiosk area in the main mall was one of the worst areas. In this regard the exchange between Crown counsel and Mr. Wood is as follows:

Q. All right. And so the beam was one of the worst areas you saw in 2009.

A. It was one with the most fireproofing removed. I wouldn't call it the worst.

Q. Well, we went through this yesterday, but although your report didn’t reflect it, your notes reflect that there was delamination in that beam.

A. Correct.

Q. So, that was – that was bad – that was more than surface rust.

A. Yes.

[208] In my view, the evidence of Robert Wood in which he attempts to minimize what he saw on gridline 16 at the ticket kiosk in 2009 was an attempt to justify why he did not inspect that beam at the ticket kiosk when he did his 2012 inspection. Mr. Wood looked at Beam 1 at gridline 16 in 2009 but not in 2012, as he put it, “because there was no leaking in that area”. Mr. Wood did not have his 2009 report with him when he conducted his inspection on April 12, 2012 at the mall, and did not inspect this area despite the fact he identified it as one of the worst areas for water leakage in his October 28, 2009 report. When cross-examined about this lack of inspection of Beam 1 at the ticket kiosk in 2012, the Crown asked:

Q. So, all you would have to do at that point – on April the 12, 2012 is get a ladder, an elevating device, something to get you up there, push a ceiling tile aside and have a look.

A. Correct.

Q. That’s all you had to do.

A. Correct.

Q. And you didn’t do that.

A. I didn’t do that. I made a judgment that there was no leaking at that area, and, therefore, my time was better spent looking at other areas.

[209] As we will see later from the NORR report, it was the connection failure at gridline 16 (Beam 1) at the ticket kiosk that led to the partial collapse of Algo Centre Mall in Elliot Lake, Ontario on June 23, 2012.

[210] In his evidence, Robert Wood agreed with the suggestion put to him that you can’t inspect what you cannot see. This requires the inspector to be close enough to see what you are looking at and to have an unimpeded view of what you are looking at. Given this, it seems logical that when there is fireproofing or fireproof insulation at the steel structures that this would have to be scraped away to get a good visual view of the steel structure. In his evidence, Mr. Wood agreed with the suggestion that in order to get a good view of connections, welds and bolts, you have to scrape the fireproofing off – “to do the job properly”, as Mr. Wood put it. Despite this, Mr. Wood testified that during his inspections at the mall he didn't see a need to scrape the fireproofing off and look at the connections. Mr. Wood provided the following explanation for this:

Because I was asked to complete an inspection that – in the areas where fireproofing had been damaged and there was excessive rust. I looked at these areas. Those areas happened to be mid-span of most of the beams because that was the area that – because of the deflection, water was ponding in those areas and that’s where most of the leakage was occurring.

[211] At a later point in his evidence, Mr. Wood indicated that he “might have” scraped off fireproofing to look at the beams and connections but in giving this evidence he was confronted by the statement that he gave previously to OPP officer, Sue Storey, who asked, “Was there a time in your entire career since the 70’s when you scraped away fire protection?” Mr. Wood’s answer was “never” (Exhibit 131A, page 39). Mr. Wood tried to explain away this contradiction by indicating that when he made this comment to Officer Storey he was referring to “unimpacted fire protection”.

[212] In his evidence at trial, Robert Wood testified that he looked at connections in the Bargain Shop, in Dollarama and “elsewhere in the building” in his 2009 inspection of the mall. This was exactly the opposite of what Mr. Wood indicated in his statement to Officer Storey. Mr. Wood told Officer Storey that he did not look at any joints where the beam joined another beam during his October 5, 2009 inspection. Specifically, Mr. Wood stated to Officer Storey, “I don't know if all the connections were bolted or - whatever they were all welded because I never saw the connections outside the bolted connections in Zellers”. (Exhibit 131A, page 36)

[213] I find the explanations given by Robert Wood regarding the changes he made to his report dated May 3, 2012 difficult to accept. This is especially so with respect to the changes from the first version to the second version of the May 3, 2012 report where the words “ongoing leakage” were removed from the second version of the report.

[214] The fifth paragraph of the first version of the May 3, 2012 report reads as follows:

All beams inspected had little loss of section and we would consider the members structurally sound. The ongoing leakage from the parking deck is of particular concern in the areas of Zellers, and the expansion joint located along the south wall of the Algo Inn, over the municipal library. As per pictures 5 and 6 we noted vehicular impact on wall siding in this area, that may have added to the problem.

The fifth paragraph of the second version of the May 3, 2012 report as revised, reads as follows:

All beams inspected had little loss of section and we would consider the members still structurally sound. The leakage through the parking deck has caused surface rusting of the structural steel in the areas of Zellers, and the expansion joint located along the south wall of the Algo Inn, over the municipal library. As per pictures 5 and 6 we noted vehicular impact on wall siding in this area, that may have also added to the problem.

[215] Mr. Wood indicated in his evidence that he removed the word “ongoing” from his 2012 report “to make the sentence read better and more concisely”. Mr. Wood went on to say that the removal of “ongoing” from the fifth paragraph of his May 3, 2012 report made the report “more concise and more in accordance with what I had seen”.

[216] When you read the fifth paragraph of both reports it is difficult to appreciate how that paragraph is more concise or how the paragraph reads better by the removal of the word “ongoing” as it describes the leakage. In my view, Mr. Wood’s explanation as to this is nonsensical.

[217] It is also difficult to accept Mr. Wood’s evidence that he thought Greg Saunders was going to stamp the second, revised version of the May 3, 2012 report when he did not discuss the revisions with Mr. Sanders or show him the second May 3, 2012 report in the revised state. As to Mr. Wood’s evidence on this point, the Crown asked:

Q. Somehow, by osmosis, Saunders was supposed to know to pull the report off the computer, stamp it and send it to the financing company, is that what you’re suggesting to us, sir?

[218] To this question, Robert Wood answered “yes”, which underscores the absurdity of the position taken by Mr. Wood with respect to what he expected Greg Saunders to do with the second version of the May 3, 2012 report.

[219] Robert Wood testified that he had no recollection of asking his assistant Tracy Patrick to remove picture 7 from the May 3, 2012 report. Mr. Wood did agree with the Crown’s suggestion that the removal of picture 7 from the report was entirely misleading of what he saw in his April 2012 inspection of the mall. On the evidence before me, I conclude that in fact Robert Wood instructed his assistant Tracy Patrick to remove picture 7 from the initial version of the report. Tracy Patrick testified that she looked for Mr. Wood when the request to remove the picture was made. Tracy Patrick did not act without the instructions of Mr. Wood and she testified that the removal of picture 7 from the report was done on Mr. Wood’s instructions. At Exhibit 81, Tab 9, Rhonda Bear inquires by email if the photo in picture 7 can be removed from the report. In her email response dated May 11, 2012 to Rhonda Bear, Tracy Patrick state, “Rhonda, I got a hold of Bob and here is the revised report plus the revised pics”.

[220] Although Mr. Wood cannot recall authorizing the removal of picture 7 from the May 3, 2012 report, there is ample evidence that he in fact did provide these instructions, from the evidence of Tracy Patrick and the fact that the second version of the report goes out contemporaneously with the request to remove picture 7 from the report.

[221] There is a dispute about whether Robert Wood had a conversation with Ronald McCowan concerning the state of the Algo Centre Mall, in Elliot Lake, Ontario. Mr. McCowan is a real estate developer who owns and operates a real estate development corporation named McCowan and Associates. Mr. McCowan purchases properties that need work and then develops the properties for rental by “Triple A tenants”, such as Sobey’s, Shoppers Drug Mart and Rexall Pharmacy. Mr. McCowan became interested in purchasing the mall in 2009 and from that point onward he was involved in a series of negotiations and various written offers of purchase and sale to acquire the mall, although no concrete sale of the mall to Mr. McCowan ever materialized.

[222] It was the evidence of Ronald McCowan that the 2009 report prepared by Robert Wood was brought to the attention of Mr. McCowan and as a result he telephoned Robert Wood. According to Mr. McCowan, the purpose of his call to Mr. Wood was to have him explain the condition of the roof at the mall. Mr. McCowan described his contact with Mr. Wood as a “four-minute telephone call” in which Mr. Wood told him that the roof was in bad shape, it was leaking and that it “was very serious; it needs to be looked after right away”.

[223] It was the evidence of Mr. McCowan that he asked Mr. Wood how much it would cost to repair the roof. Mr. McCowan indicated that he asked Mr. Wood to give him a range and that he recalled Mr. Wood telling him that 1.5 million dollars was the range to fix the roof at the mall and that the roof was “in very bad repair”. Mr. McCowan testified that the “gist” of what he got from Mr. Wood was that the roof had to be fixed immediately. Mr. McCowan testified that he took from the conversation that there could be serious problems in the roof, either caving in or something bad happening but Mr. McCowan was very clear in his evidence that Mr. Wood did not say the roof would cave in or would collapse, that is what Mr. McCowan took from the conversation. Specifically, Ronald McCowan was asked the following questions and provided the following answers in his examination in-chief:

Q. Did he – did he say anything more than just very bad repair to you?

A. It has to be fixed immediately and the gist I got from it was, if this – if this is not done right away, there should – could be serious problems in the roof, either caving in or something bad happen. Now, that was not Mr. Wood’s words, those are my words, from the interpretation of what I was getting from him.

Q. What do you remember him saying then that lead you to that interpretation?

A. It was in really, really bad shape. I remember those words.

Q. Did he say anything – you said the interpretation about cave-in, falling – did he say anything along those lines to you?

A. Not that I remember.

Q. Was there anything else discussed between the two of you?

A. That it – that it should be done right away and I thanked him for his candidness and I hung up the phone and I went back to Ashley and said, get me a 1.5 million dollar discount.

[224] Robert Wood indicated in his evidence that he does not remember being contacted by a person called Mr. McCowan. Mr. Wood does, however, remember at some time having a conversation with “a developer”. Mr. Wood had no independent recollection of Mr. McCowan contacting him as Mr. Wood stated in his evidence:

As I said, in trying to remember, I believe a developer called me informing me that he had a copy – or he’d been given a copy of my report by Mr. Nazarian. And beyond that, I really don't recall much of a conversation.

[225] In his evidence, Mr. Wood denied telling a developer that the Algo Centre Mall roof was in bad shape or that it needed immediate repair or that an estimate of the cost of repair would be in the 1.5 million dollar range. As Mr. Wood put it in his evidence, “I would never had said anything like that because I didn’t believe it.” Mr. Wood went on to state in his evidence, “I had no concerns over the condition of the mall. I had no idea what the cost of roofing repairs was that he suggested I suggested to him. He – he fabricated the whole issue as far as I’m concerned.”

[226] In cross-examination, Ronald McCowan acknowledged that he did not tell anyone of the concerns he says Mr. Wood expressed to him about the roof. Mr. McCowan did not feel an altruistic need to report the roof concerns but rather focused on the economic advantage the information could give him by way of a reduction in the purchase price for the mall. In cross-examination it was put to Mr. McCowan that the reason he did not relay the concerns from his discussion with Mr. Wood to any third party was because the discussion with Mr. Wood never occurred. Mr. McCowan disagreed with that suggestion in the following exchange:

Q. Well, I put it to you, sir, the reason you didn’t call anyone is because Mr. Wood didn’t tell you about the condition of the mall. Do you agree with me?

A. I absolutely disagree with you.

Q. You...

A. I made a call, it is clear in my mind, that I made a call and spoke to a Mr. Wood. Clear. It cannot be more clear.

Q. I’m talking about the content of that. It was a four...

A. The content...

Q. ...minute conversation.

A. The content of the conversation, I cannot remember verbatim, but it is very clear in what was communicated to me.

Q. What was communicated to you, but you don't recall the exact words?

A. That’s correct.

[227] In examining the evidence of Mr. Wood and Mr. McCowan, Mr. Wood does not have an exact recollection of any details of the alleged conversation; he simply remembers talking to “a developer”. Mr. McCowan’s recollection of the conversation is more fulsome and he can provide more particulars and details of the conversation that he said he had with Robert Wood.

[228] The evidence of Ashley Sherrard, a broker employed by Mr. McCowan, clearly indicated that she provided the report of Mr. Wood to Mr. McCowan. There is uncontradicted evidence that Mr. McCowan had Mr. Wood’s report of October 28, 2009. Furthermore, there is evidence to suggest that Mr. McCowan acted upon the information that he says he received from his telephone conversation with Mr. Wood. Ashley Sherrard corroborated the evidence of Ronald McCowan that she was given instructions by Mr. McCowan to seek a reduction in the purchase price to purchase the Algo Centre Mall by 1.5 million dollars, to cover off what he thinks it’s going to cost to make the roof repairs if he ultimately purchases the Algo Centre Inn property. This reduction in price and a subsequent reduced offer is consistent with the version of events relayed to the court by Ronald McCowan concerning the telephone conversation which he had with Robert Wood.

[229] On the totality of the event, I conclude and find as a fact that the telephone conversation between Mr. McCowan and Mr. Wood as described by Mr. McCowan did in fact take place. I accept as a fact that Mr. Wood relayed to Mr. McCowan that the mall roof was in need of repair and that this would be a costly process. I also find as a fact that Mr. Wood did not tell Mr. McCowan that the mall roof was going to collapse or was on the verge of collapsing. There is no evidence that any such statement was made by Mr. Wood as was acknowledged by Ronald McCowan in his evidence to the court. This must be borne in mind when considering the conversation that Robert Wood had with Ronald McCowan.

[230] Overall, the evidence of Robert Wood was not impressive. At times he was arrogant and condescending while giving his evidence. At other times he was engaging and charming. When Mr. Wood was charming and engaging, it is not difficult to understand the loyalty he cultivated in his employees and assistants that was apparent while they were giving their evidence to the court. It was clear that in his evidence Mr. Wood was trying to accentuate the positive aspects of his involvement at the Algo Centre Mall and minimize his omissions and shortcomings in his inspections and reports pertaining to the mall. The court was left with the impression that Mr. Wood, at times, was trying to spin a narrative to justify his actions and conduct. At times, this narrative was difficult to accept and lacked the ring of truth.

[231] Since the accused testified at his trial, the principles of R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, come into play. In that Supreme Court of Canada decision, Cory J. writing for the majority of the court stated at pp. 757-758:

Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused, but you are left in reasonable doubt by it, you must acquit.

Third, even if you are left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[232] This formula of the court reinforces the principle that the Crown must prove the guilt of the accused beyond a reasonable doubt, which is a cornerstone in the criminal justice system in Canada.

[233] It is the third prong of the W.(D.) test that is applicable in the case at bar and is to be considered by the court.

Evidence of Azadoor Robert Nazarian

[234] I do not intend to spend much time discussing the evidence of Bob Nazarian. In his submissions to the court, after the hearing of evidence, Crown counsel cautioned the court that it should not rely on the evidence of Bob Nazarian unless it is corroborated by other evidence. This is the framework in which the evidence of Bob Nazarian should be examined. The evidence of Bob Nazarian is corroborated by the evidence of Rhonda Bear-Lendt and Tracy Patrick with respect to his initiating and requesting the three changes made to the May 3, 2012 structural report prepared by MRW. I accept Mr. Nazarian’s evidence that he did not believe that the mall would collapse. His rationale for this is reasonable which he stated in his evidence that “we had several engineers looking to the mall and we had certificate from MRW, respected engineer, that they have done the structural engineering and they gave us approval that the mall is sound”.

[235] Overall, Bob Nazarian can best be described as defensive, evasive and argumentative in his responses to questions posed to him and the manner in which he gave his evidence to the court. Right from the outset of his evidence, Mr. Nazarian had to be cautioned by the court to answer the questions posed to him directly and in a non-evasive manner. This was during examination in-chief. Mr. Nazarian attempted in his evidence time and time again to paint a picture and weave a narrative that placed his mall ownership in the best possible light. Mr. Nazarian testified that he realized that the mall was leaking shortly after he purchased it in the fall of 2005. As he put it in his evidence, “I see that there’s leaks, but for me leaking roof is a very simple, very easy to remedy. I know exactly what to do, but I was not aware that they have dumped some concrete on top of the hollow core slab and it’s overweight. I did not know that and nobody told me about it.”

[236] Bob Nazarian wanted the court to be left with the impression that he was dutiful in trying to stop the leaks in the mall. Mr. Nazarian tried to take credit for the fact that the leaks in Zellers were stopped after seven years. This assertion is contrary to all the other evidence the court heard which established as a fact that the Zellers store leaked up to the time of the partial collapse of the mall. When pressed on this issue Mr. Nazarian stated, “Funny is that some days there were no leaks; some days there were a few leaks”. As discussed previously in this judgment, the Elliot Lake Fire Chief Paul Officer and Dmitri Yakimov had a very unfavourable impression of Bob Nazarian. I accept the evidence of Paul Officer that Mr. Nazarian was a game player who progressively cut down on the maintenance at the mall. I accept the evidence of Dmitri Yakimov that he spoke to Bob Nazarian extensively about the leakage problem in the parking deck roof and that he made suggestions to Mr. Nazarian which were ignored. On the basis of all the evidence it is not difficult to accept Mr. Yakimov’s view that Bob Nazarian was “very dismissive” of his concerns and that Mr. Nazarian was not anxious to tell people the exact problems at the mall.

[237] The belief of Dmitri Yakimov that Bob Nazarian was using less expensive materials on the roof repairs at the mall as “a cheap way out” is supported by the views of others who were employed by Mr. Nazarian in connection with the mall. Henri Laroue was the manager of the Algo Centre Mall from July 16, 2008 until she resigned her position on May 3, 2011. During her time as mall manager she reported to Bob Nazarian. Ms. Laroue testified that there was specific concrete recommended and ordered to do the repairs to the parking deck roof. When the invoice for this material was received, Bob Nazarian telephoned Ms. Laroue and told her that this concrete did not need to be used and prevented her from ordering more of it. According to the evidence of Ms. Laroue, a more inexpensive concrete was ordered and used as a cost saving measure by Mr. Nazarian. When asked about this evidence of Ms. Laroue, Mr. Nazarian’s response was to try to discredit Ms. Laroue by stating, “Ms. Laroue was working in a bar previously and had some record, I learn afterwards and she was not really qualified manager”.

[238] Henri Laroue resigned her position as mall manager on May 3, 2011. The reason for this was, in part, that she felt that Bob Nazarian had no concerns about breaking the law and she did not want to be a part of that. The letter of resignation dated May 3, 2011 submitted to Bob Nazarian by Ms. Laroue was entered as Exhibit 38. Page three of that letter states, in part:

...The Fire Department has provided me all of the facts in regards to who is held liable should there ever be anyone injured here at the mall/hotel due to fire. The law is very specific and names the manager of the property as one of the liable beings. Yet when I was explaining to you that I had to comply with the Fire Department demands you said to put it away because they had taken enough of my time. This is very disheartening, to realize that your priorities do not include a safe work environment.

Due to all of these facts and that you are asking me to perform illegal acts over and over again, I am forced to resign my position here at the Algo Centre Mall as General Manager for Eastwood Mall Inc.

[239] Ms. Laroue amplified on one of the illegal acts referred to in her resignation letter in her evidence before the court. It was the evidence of Ms. Laroue that she was asked to alter the rent rolls by Bob Nazarian. The essence of Ms. Laroue’s evidence was that two rent receipt rolls were kept depending on what party was asking to see the rent receipts. If it was the bank or a financial institution that was interested, the rent rolls would reflect an increased tenancy and increased rent receipts for the mall. This, of course, would reflect favourably on financing requests. If it was the City of Elliot Lake that was interested, the rent rolls would reflect a decreased tenancy and decreased rent receipts for the mall. This, of course, would reflect in a decreased tax levy for the mall. Entered as Exhibit 41, was a rent summary for May 2010 that clearly shows two entries for rent, one for $215,738.14 and one for $252,359.40. There are two rent rolls for the same period of time with two different amounts.

[240] When the court considers the evidence of Henri Laroue in conjunction with the evidence of Dmitri Yakimov and his experience with the proposal for financing to Elnos (referred to earlier in the evidence) which Mr. Yakimov considered to be a fraudulent scheme in which invoices were submitted for work on the roof that was not yet completed, it calls into question the character of Mr. Nazarian. Mr. Nazarian was defensive in his response in cross-examination about the proposal to Elnos but did acknowledge that the work invoiced by Empire Roofing and Restoration was not done and that no funds were paid to that entity. Mr. Nazarian stated in his evidence,

We have not done any kind of work with Empire Roofing. We have not done any work through Empire Roofing. Empire Roofing was created to borrow money and make the renovation. Now, you can ask that question ten times, going to have the same answer. Empire Roofing didn’t do any kind of deal.

[241] Bob Nazarian denied the suggestion put to him in cross-examination that Empire Roofing was created to fraudulently deceive Elnos regarding monies invoiced and spent on roof repairs in the mall when in fact no such funds had been paid nor work done. Despite professing to be an experienced businessman and in fact an engineer by training, Mr. Nazarian testified that he did not know the difference between a “quote” and an “invoice”. As with many aspects of his evidence, this evidence strains belief and is difficult for the court to accept.

[242] When questions were put to Mr. Nazarian about the piece of concrete that fell at the Hungry Jack Restaurant in the mall, he made every effort he could to distance himself from the event. It was Mr. Nazarian’s evidence that when Rhonda Bear-Lendt told him that a piece of concrete fell close to the restaurant he was told not to worry about it by Ms. Bear-Lendt because it was “mushy” and could be a piece of insulation. This was not the evidence of Rhonda Bear-Lendt who testified that she told Mr. Nazarian that it was a piece of cement that fell and that maintenance said to her that it was a “fluke incident”. Although Ms. Bear-Lendt testified that she forwarded the pictures of the fallen concrete to Mr. Nazarian, he initially denied receiving the pictures. When pressed, he admitted to seeing the pictures but claimed the pictures he received were dark and he could not make anything out on them. What is clear on the evidence and not contradicted by any evidence called at the trial is that Robert Wood was not advised about the concrete that fell through the ceiling at Hungry Jack’s Restaurant when he conducted his inspection of the mall on April 12, 2012.

[243] The defensive nature of Bob Nazarian’s evidence is best illustrated by an exchange between defence counsel and Mr. Nazarian at the end of his testimony:

Q. I’m suggesting to you that you purposely avoided providing Mr. Wood with information with respect to the falling concrete and also that you purposely failed to inform Mr. Wood that the building had leaked since 2009 when you retained Mr. Wood to do a report on a building condition assessment in 2012, in April of 2012 – that you purposely did not provide that information to Mr. Wood. Am I correct?

A. Sir, I would say that you are manipulating right now, presump – presuming something that is not true and you’re trying to push me to a point where I accept the things that is not reality, so please, try to understand that we have done more than any landlord could have done on that building, and if you read the same – the same booklet that we just took it, Mr. Wood has indicated that we were doing the job and he was satisfied with it. And you are - you are presuming something extremely dangerous, you’re putting us down and you’re wide open for a lawsuit. I’m telling you, I’m not asking you because you’re – you’re pointing something that does not have reality, you’re giving me nonsense that I’m trying to steal something from somebody. I have 44 years work like very hard in this country, I have built things in this country and I’m honour to be in this country. I love this country and I don't want to allow you to accuse me of something like wrongdoing. I have never done wrongdoing. I have brilliant record. If you look at my record, you will see that it’s perfect. I never have any kind of wrongdoing, so please behave yourself.

Q. So, are you suggesting, Mr. Nazarian, that in fact you didn’t mislead Mr. Wood?

A. Never. Never. Mr. Wood is honourable for me. He’s wonderful gentleman, he has done lots of work. He always performed perfectly and there’s no reason why we should be doing wrong with him. He’s a wonderful gentleman. I respect him at any time.

[244] Considering the totality of the evidence presented at the trial, I agree with the initial comments of Crown counsel with respect to the evidence of Bob Nazarian, namely, that his evidence is not to be relied upon unless corroborated by other evidence. This being the case, I place little weight on the evidence given by Bob Nazarian. I have serious concerns about the reliability of his evidence and about his credibility in general.

Evidence of Dr. Hassan Saffarini and the NORR Report

[245] Dr. Hassan Saffarini provided expert opinion evidence to the court at the trial of this matter. Dr. Saffarini’s background is impressive. Entered as Exhibit 113C in the trial proper was the curriculum vitae of Dr. Saffarini. This document is lengthy and lists Dr. Saffarini’s educational background, professional affiliations, selected project experience, courses he has offered to professionals and his publications. As his curriculum vitae indicates, Dr. Saffarini has worked as the lead engineer on projects throughout the world. Although the defence required a voir dire as to Dr. Saffarini being qualified as an expert, at the end of the voir dire his qualifications were not seriously contested and it was clear that Dr. Saffarini was an expert in structural engineering and was qualified to provide opinion evidence to the court.

[246] Dr. Saffarini was retained as the lead forensic engineer by the OPP, who was engaged in a criminal investigation into the circumstances of the collapse of the Algo Mall in Elliot Lake, Ontario. Dr. Saffarini was employed by NORR Architects and Engineers and after his investigation was complete, ultimately produced a comprehensive report, referred to as the NORR Report.

[247] Dr. Saffarini and his employer, NORR Limited, were retained to attend on the Algo Centre collapsed site and conduct their own testing, and oversee the testing and services of other professional specialists to determine the direct structural course of the building failure at the mall. Dr. Saffarini and NORR were engaged to prepare a report that:

(a) Evaluates the structural factors that may have contributed to the cause of failure;

(b) Evaluates the structural integrity of the remaining building to assess signs of pre-existing structural integrity anomalies;

(c) Evaluates any other factors, including architectural, electrical, mechanical conditions that may have contributed to this collapse or other possible outcomes;

(d) Comments on pre-existing plans and technical and condition assessment reports and takes a view on liability and possible negligence;

(e) Contains an appraisal of the future viability of the building.

[248] Dr. Saffarini made it crystal clear to the court that he viewed his role as one of determining the cause of the partial collapse of the mall and not to assess responsibility or blame in connection to the collapse of the mall.

[249] Dr. Saffarini was assisted by other specialists and experts including BMT Fleet Technologies, Giatec, and the National Research Council of Canada.

[250] A redacted copy of the final report produced by Dr. Saffarini, referred to as the NORR Report, issued on March 8, 2013, was entered as Exhibit 114. The investigation section of the executive summary (page IV of the report) provides a useful overview and reads as follows:

On June 23, 2012 a partial collapse of the roof of the Algo Centre Mall in Elliot Lake resulted in the death of two victims. OPP commissioned NORR Limited to carry out a forensic investigation into the cause of collapse and the parameters that influenced it. NORR mobilised a team of professionals and augmented the team with concrete, metallurgical and corrosion specialists from Giatec, BMT Fleet Tech and the National Research Council of Canada. The team visited the site between July 21 and 29, 2012. During the visit they conducted visual inspections, took measurements, performed non-destructive testing, accumulated a photographic record, collected samples, received previous building reports and correspondence and took notes. They were later supplied with a large number of additional documents that had been seized by OPP, the majority of which were received on January 28, 2013. OPP also supplied an extensive photographic record taken by OPP Forensic Identification team just after the collapse and during the investigation, a collection taken by patrons during the mall’s service, and video clips from a number of security cameras located in the mall recording the last moments before collapse.

A series of laboratory tests were conducted on the retrieved samples, also referred to as exhibits, including destructive and non-destructive testing of the concrete sample at the NRC labs, metallographic examination at BMT Fleet Technologies and petrographic analysis at Materials & Petrographic Research G-B Inc. Each test had been commissioned with an objective in mind to provide a fairly complete picture of the condition of the structure before and at the time of collapse.

NORR and Giatec conducted a detailed visual inspection of the remaining structure and the collapsed debris. NORR also inspected the building envelope and commented on its design adequacy and its condition during service and at collapse. A brief commentary is made in view of a site inspection of the electromechanical systems and a review of the design of these systems.

NORR reviewed in some detail the design of the structure in general and the failed connection in particular. Conclusions on the adequacy of structural design are made in the report. Findings were made in view of the various testing, a document review and analysis of the forensic evidence.

[251] From pages 120 to 126 of the NORR Report, Dr. Saffarini discusses the mechanism of the collapse and the cause of the failure of the connection that led to the collapse at the Algo Centre Mall in Elliot Lake, Ontario. As to the mechanism of the collapse, Dr. Saffarini makes the following comments at page 120 of the NORR Report:

6.1 The Mechanism of Collapse

The trigger of the collapse on June 23, 2012 is quite evident. The connection between the roof level W24 x 110 beam on gridline 16 between gridlines Fx and G and the column at G-16 failed in shear as a result of loss of section of weld. The evidence of this is overwhelming. In fact the remaining weld after years of corrosion is so small that justification for the ability of the beam to support its own and the concrete above was the subject of further testing and analysis.

[252] As to the load capacity at the time of the collapse, Dr. Saffarini makes the following comments on page 121 of the NORR Report:

In reviewing footage from the security camera located at the hotel’s entrance one can see that a car drove over the connection in question only 10 seconds prior to the initiation of the connection failure and subsequent collapse. From rudimentary calculations it was found that the expected force on the subject connection due to the passing car added only about 8% to the force which was present before the passage. 97% of the load present prior to the event was due to dead load (steel beam, HCS, topping and fixtures) and only 3% was due to a parked vehicle which ended up tumbling down at failure. In other words, the force due to the vehicle which may have triggered the collapse is far smaller than the design live load. By the day of the collapse the welded connection had been so heavily depleted over years of corrosion that the passing car was the last straw that the connections could take.

[253] Dr. Saffarini describes the connection failure to have taken place in two stages. As he states on pages 124 and 125 of the NORR Report,

6.7 A Two Staged Failure

The failure of the subject connection is believed to have taken place in two stages, separated by several months, as the forensic evidence indicates. The connection would have been heavily corroded with a significantly depleted weld. It is likely that the connection could have been subjected to a heavy localized load for a short duration, such as say the wheel load of a loaded bus. This would have resulted in a weld failure which did not break the connection entirely but rather sheared a significant part of it. Corrosion on the weld failure surface cannot be interpreted as resulting after the June 2012 collapse due to the presence of dark oxide and pitting. Additionally the exhibits were knowingly placed in environmentally controlled storage after the collapse. After the first failure it is foreseen that the connection was not subjected to a significantly higher level of loading than its usual service. The connection would have continued to corrode however depleting its residual capacity even further.

It is estimated that the capacity of the connection that remained until June 2012 was approximately 13% of its nominal capacity when it was built. The remaining capacity is estimated to be roughly equal to the actual load that the connection was subjected to on the day of the collapse. The load was primarily that of the self-weight, the relatively small weight of a parked car and that of a car that passed over the joint moments before the collapse. The force from these cars would have been less than 25 kN, or only about 10% of the exerted total weight present prior to collapse. This nevertheless was enough to take the connection over the threshold of shear failure and cause the collapse.

[254] A summary of the overall conclusions reached by Dr. Saffarini and his team are set out in the conclusion section of the NORR Report which begins at page 126. A summary of the conclusions reads in part, as follows:

7. Conclusions

This forensic engineering report has involved: field inspection, in-situ testing, laboratory testing, review of documents, analysis of test results and modeling of failed structural components. An interpretation of the sum of the outcome of these exercises was presented to establish the facts and draw conclusions that may not otherwise be evident to the layperson or to a forensics specialist without engineering background. Here are the main findings:

• The trigger of the collapse is quite evident. The connection between a roof level beam on gridline 16 between gridlines Fx and G at column on G-16 failed in shear as a result of loss of section of weld. The evidence of this is overwhelming. When the connection was lost, the beam could no longer support the roof parking deck and the concrete panels fell onto the Upper Mall Level and caused a similar collapse.

• Failure occurred on a summer day where snow accumulation would not have contributed to overload. There is security camera footage which shows precisely what loading the failed beam and connection were subjected to at the time of collapse. In addition to the self-weight of the roof there was a parked car and another which passed over the connection location moments before the event.

• Collapse took place when the roof slab was subjected to a live load that is significantly smaller than the design load and is in fact smaller than many loads that it would have endured during its lifetime. The design loads of the steel structure had allowed for a fully occupied parking lot with half of the snow fall that is likely to accumulate in a 50 year storm. Such a load would be nearly 6 times the live load that was present briefly on the failed beam seconds before its collapse. In other words, the collapse occurred due to the loss of capacity due to 'corrosion and not due to exceeding the design load.

• The failed connection however was very severely corroded and the remaining weld was so small that justification for the ability of the beam to support its own weight and that of the concrete above was the subject of investigation and scrutiny by NORR. It is now believed that the welded connection had lost more than 85% of its as-built nominal capacity by the time of failure. The as-built nominal capacity was significantly higher than that specified by design simply as a result of generous weld geometry by the original installer.

• Through metallographic examination and structural analysis, we were able to correlate the remaining capacity with the applied load at the time of failure. Clearly failure could have happened at any time, perhaps even months before it eventually did.

• The metallographic examination revealed that failure actually took place in two events, separated by several months, perhaps a year. The type of corrosion exhibited on the suspected failure surface of the first event needed several months at least to generate the black oxides and the pitting that were observed. The first event led to a reduction of capacity of the connection but did not cause a break. The weakened connection continued to corrode and eventually sheared off in the second event which took place on June 23, 2012.

• The significance of the two stage failure is that the depletion of capacity went on for a long time and collapse was in the making for years. It is in fact somewhat surprising that failure did not happen earlier. For example the first event could have easily led to collapse but the connection held up.

• While the two-stage failure of the connection is supported by hard forensic evidence, the cause of the first event would need to be speculated on. It is suspected that the connection, which would have been significantly stronger at the time of the first event, may have been subjected to an unusually high level of loading of a transient nature. A possible scenario would entail a loaded bus passing over the connection. The load of the bus was perhaps amplified by the impact due to a bump which is reported to have been present at that location and which has been commented on in this report. The force exerted by the dynamic effect of a heavy bus is enough to cause failure of an already corroded connection. As the loading was brief, collapse was averted on that day. We were told that there is anecdotal evidence of buses loading and unloading at the hotel entrance despite the load limitation signs at the moveable parking arm-gate.

• Corrosion which is the culprit of the failure can only occur in the presence of water and oxygen. It is further exacerbated by the presence of chloride. There is an abundance of evidence of water leakage from the day the mall opened and the leakage continued until the day of collapse. In fact, during the July 2012 inspection by NORR it rained and the roof leaked in many locations. In some locations water gushed through. The buckets and bladders used to collect water were often full as NORR was conducting the inspection.

• Concrete testing revealed high levels of chloride in the concrete topping. The source of chloride can only be that of de-icing salt. One cannot however conclusively comment on the use of salt on the parking deck or if such practices, if prevalent in the early years of the mall, continued until recent times. In reference to studies conducted by Trow and Halsall in the nineties and measurements taken by NORR/Giatec in 2012 one can see a drop in the rate of increase of chloride content in the concrete topping. This can either be due to a change in the mall management's de-icing practices or due to saturation of the concrete with chloride in the earlier years. Chloride was found in the corrosion product s signifying a likely recent exposure. BMT examined the rate of corrosion and came to the conclusion that the rates observed in the Algo Centre Mall are comparable to those found in a "marine" environment.

• In the rather extensive visual inspection that NORR and Giatec conducted in July 2012 the amount of corrosion in the steel members and connections was extensive. A statistical survey shows that most of the inspected locations had a level of severe to very severe corrosion in the beams' top flanges, bolts, welds, angles or all of the above.

• The original structural steel design of the mall was done for the most part in compliance with the prevailing codes of the time and in keeping with the common practice for such construction of that period. The capacities of the members and the connections would have been adequate to support the loads on the day of failure.

[255] To reach those conclusions, Dr. Saffarini conducted various inspections including a visual steel corrosion inspection. This inspection is detailed from pages 102 to 119 of the NORR Report (Exhibit 114), in which Dr. Saffarini discusses the various locations of the visual corrosion inspections conducted within the mall and a summary of those inspections. Exhibit 114-B provides a more detailed analysis of each of the 22 random areas that the NORR team inspected within the mall.

[256] The 22 areas inspected for visual steel corrosion within the mall are detailed in Exhibit 114-B with the top flange, the web and the bottom flange being rated using the following classification as to condition which are set out on page 103 of the NORR Report:

• Good – An element or part of an element with signs of light or no corrosion

• Fair – An element or part of an element with signs of medium corrosion. Section loss is estimated to be less than 10%

• Poor – An element or part of an element with signs of severe to very severe corrosion. Section loss is estimated to be greater than 10%. Extensive rusting, pitting, and/or perforations observed. This level of corrosion would normally trigger rehabilitation or replacement if the extent affected the overall performance of the member.

[257] A summary of the statistical results of this corrosion inspection is found on pages 104 and 105 of the NORR Report. This summary encapsulates the results and graphically illustrates the findings. With respect to the Beams at the 22 randomly selected sit locations, the majority of the top flange and the web were rated severe as to corrosion. With respect to the connections, the majority of the angles and bolts were rated severe as to corrosion. With respect to columns, most were rated in the low category with respect to corrosion. Overall, the results showed a majority of locations where severe to very severe conditions were observed.

[258] In his concluding remarks on the structural condition of the mall, Dr. Saffarini makes the following remarks at page 119 of the NORR Report:

5.4.7 Concluding Remarks on Structural Condition

The visual inspections performed by NORR and Giatec make it clear that it was not difficult to find signs of very severe corrosion in the Algo Centre Mall. Corrosion was observed in the majority of the locations inspected in varying degrees of severity. The discussion on the critical conditions observed throughout the site showcases a number of areas that would require immediate attention if they had been recognized during the mall’s operation. A number of the most critical examples highlighted in this report were found in plain sight, such as the walkway. It is not entirely clear how this situation went unnoticed for such an extended period of time. It is apparent that the severity of corrosion has generally been underestimated by previous inspectors of the mall.

[259] The last sentence of these concluding remarks was explained further by Dr. Saffarini in his evidence at the trial. Dr. Saffarini offered this further explanation, “So, we are making a general statement here that there were many signs and even though a number of inspectors have gone through the mall, these signs have not been picked up”.

[260] The fact that numerous professionals who inspected the mall did not detect or underestimated the steel corrosion and general condition of the mall is a theme repeated by Dr. Saffarini throughout the NORR Report. At Page X of the Executive Summary in the NORR Report, Dr. Saffarini observes,

A number of reputable architecture and engineering firms inspected the building with various objectives and varying scope. The most involved of these efforts was that by Trow, between 1991 and 1995. In 2011, a profound solution was in the works that this never materialized because of commercial disagreement. The effort of 2011, unknown to the owner and engineer at the time, was probably too late to correct failure of a structure that had already corroded so severely.

[261] Dr. Saffarini goes on to comment further on Page X that, “The likely condition of the structure over the past few years had been as bad as it was observed by NORR in July 2012. Almost half of the locations inspected were in a severe to very severe condition of corrosion where remedial action typically would have been required”. Dr. Saffarini states further that, “The clean bill of health given to the structure by a number of consultants in the past few years before the collapse is quite alarming. One explanation that comes to mind is that building structural engineers are not typically acquainted with failures due to corrosion. In digging into the literature, one is hard pressed to find a similar example where a carbon-steel framed building in North America or Europe continued to corrode to the point of failure, when no other extreme case of loading contributes to failure”.

[262] These comments by Dr. Saffarini may explain his concluding observations at page 130 of the NORR Report, which reads as follows:

In closing it is worth reiterating the need to increase awareness among the engineering community and authorities with jurisdiction in regard to the seriousness of corrosion in steel buildings. Leakage in buildings should be dealt with in a similar fashion as for example a loss of fire protection and should be dealt with promptly. Structural engineers conducting inspection of steel buildings need to use a systematic approach which includes measurement of loss of section, review of members and connections, ascertainment of sources of corrosion catalysts and informing owners of the need for future inspections where conditions call for such revisits. Guidelines for the inspection of building structures and regulations to avoid calamities such as that of the Algo Mall Centre may be in order.

[263] Dr. Saffarini states at page 89 of his report that, “It was abundantly clear upon initiation of the forensic examination of the Algo Centre Mall that there was a significant water infiltration issue”. This statement is not surprising given what the lay people who attended the mall observed and testified about at the criminal trial. This begs the question, how could an engineer not notice the level of water infiltration, the corroded state of the mall or the general deterioration of the mall structure? This question was put to Dr. Saffarini by the Assistant Crown Attorney and led to the following exchange:

Q. In your opinion, given what you saw at the Algo Mall during your on-site investigation, could an engineer acting in their professional capacity who’s knowledgeable of their obligations, not notice the deterioration of the structure?

A. It is – it is inconceivable that they would not notice the – the deterioration. The next question that one would ask is it conceivable that one would – would notice that and would not have the right judgment to deem it a safety concern? It is conceivable. You know, it’s not inconceivable, but it is inconceivable that – that the signs that are there would – would not be observable by – by any engineer who is there with the intent to look. So, if anybody is there with the intent to look, they would clearly see that there are serious corrosion – there is a serious corrosion issue that would be clear. The fact that a serious corrosion issue in a structure means that a structure can be compromised becomes part of basic kind of knowledge – to what extent, then that is where the engineering judgment is to be – to be applied.

THE COURT: So – so just so I understand that answer, Dr. Saffarini – so, it’s – it’s inconceivable or sort of impossible that an engineer looking at the Algo Center Mall would not see that there is corrosion or deterioration in the building, but it’s not – it’s not – it’s not inconceivable that the exercise of his or her judgment would leave them to conclude that it’s – it’s not a safety issue.

A. That would be a poor judgment, definitely, a poor judgment. Is it – is it conceivable that one engineer or the other would – would apply that poor judgment is – is what I am – I’m characterizing as conceivable. Is it probable? How probable, it is conceivable that some engineer would – would lack the right judgment to understand that this is truly a safety hazard and – and basically in what I’m saying is that this engineer who would apply that judgment may not apply it out of malice, he would simply apply it out of poor judgment.

[264] It is clear from the testimony and report of Dr. Saffarini that the water infiltration into the mall created conditions for the deterioration of the structure, which was badly corroded for many years prior to the collapse. Many of the locations examined by Dr. Saffarini, as set out on page 102 of the NORR Report were locations that were also examined by Robert Wood in 2009 and 2012. This leads us back to Dr. Saffarini’s comments on page 119 of the NORR Report, in which he observed:

It is not entirely clear how this situation went unnoticed for such an extended period of time. It is apparent that the severity of corrosion has generally been underestimated by the previous inspectors of the mall.

Other Experts

[265] Dr. Pouria Ghods is the President and Co-founder of Giatec Scientific Inc., which has its head office in Ottawa, Ontario. Giatec was part of Dr. Saffarini’s team which provided expertise and analysis as part of the forensic investigation related to the collapse of the Algo Centre Mall in Elliot Lake, Ontario. Dr. Ghods was qualified as an expert as to the inspection of steel structures, particularly in relation to corrosion, and the inspection and testing of concrete.

[266] Dr. Ghods confirmed that as the lead investigator Dr. Saffarini requested the assistance of Giatec in the investigation to provide its expertise, particularly in the area of concrete analysis and testing, with a special emphasis on corrosion, which is of a particular interest to Dr. Ghods.

[267] Dr. Ghods and three other individuals from Giatec, including the other Co-founder of the company, Dr. Aali Alizadeh, arrived on site at the Algo Centre Mall on July 22, 2012. Giatec conducted a detailed visual inspection of the steel structure at the mall and on-site work related to the concrete at the mall. There was some on-site testing performed of the concrete and core samples were taken for extensive examination and testing at the Giatec laboratory in Ottawa, Ontario.

[268] Related to the observations and testing performed by Giatec at the mall were the following reports which were filed as exhibits at the trial:

Exhibit 114-C – Detailed visual corrosion inspection survey of the steel structure at the Algo Centre Mall

Exhibit 114-K – Analysis of laboratory test results of concrete samples from the Algo Centre Mall

Exhibit 114-L – Non-destructive field testing of concrete at the Algo Centre Mall

[269] At page 8 of Exhibit 114-C, Giatec outlines the various locations within the mall where a visual inspection of the steel members, such as beams, columns and connections took place. Giatec was assigned to do detailed visual inspections in 19 separate locations within the mall. As set out on page 6 of Exhibit 114-C, the classification of the severity of corrosion on the steel elements were classified into four groups, using the provisions of the Ontario Structure Inspection Manual (OSIM). The four groups are as follows:

Light: Loose rust formation and pitting in the paint surface. No noticeable section loss.

Medium: Loose rust formation with scales or flakes forming. Definite areas of rust are noticeable. Up to 10% section loss.

Severe: Stratified rust with pitting of the metal surface. Between 10% and 20% section loss.

Very Severe: Extensive rusting with local perforation or rusting through. In excess of 20% section loss.

[270] The various locations examined by Giatec with the classification of corrosion and comments on section loss are set out in detail with photographic evidence at pages 16 to 146 inclusive of the Giatec report entered as Exhibit 114-C. There is no need to comment in detail on each location examined, however, some specific locations must be highlighted. Page 66 of Exhibit 114-C sets out the GL intersection at G 15, which is close to the collapse site in the mall. As noted on page 67 of Exhibit 114-C, all the connections at that location, including angles, nuts, rod and welds were severely corroded.

[271] On page 76 of Exhibit 114-C there is a discussion of the examination of the exterior walkway in the upper level of the mall. Page 78 of the report is a photograph of the walkway section after the cladding covering was removed. All elements of the beam, including the top and bottom flange and the web were noted to be severely corroded; 70% of the top flange was lost. The tendons from the hollow core slab in this location were in a severely corroded condition as is noted from the photograph at page 80 of Exhibit 114-C at this location site.

[272] On page 110 of Exhibit 114-C an inspection located at the beam-truss-column connection at gridline intersection E-13X, directly underside of the walkway area above the Foodland Store is discussed. On page 111 it is noted that the bottom flange of the beam is 100% corroded, meaning that part of that sub-element is completely gone. All the elements at this connection were noted to be in “very poor condition” and “the extent of the corrosion-induced damage on the web of the beam at this location was so advanced that some large cavities were observed on the web”.

[273] There were other inspection areas set out in Exhibit 114-C which indicated severe corrosion in the steel connections at the Algo Centre Mall. Dr. Ghods indicated in his testimony that these locations of severe corrosion would prompt him to perform measurement tests to determine the loss of section or capacity of the steel member.

[274] Interestingly enough, the inspection discussed on page 118 of Exhibit 114-C, which was a beam to column connection at gridline intersection B-17, inside the Saan Department store directly below parking hollow core slab revealed no rust on the structural elements. At that location the fireproofing material were removed from the steel and connection for the inspections.

[275] In the concluding remarks on page 14 of Exhibit 114-C, Dr. Ghods makes the following observation with respect to the visual corrosion inspection made of the steel structure at the mall:

The corrosion condition of the inspected beams was more severe than the columns inspected in this investigation. In addition, the corrosion condition of the top flange of the beams was more severe than the other parts of the beams such as the web or the bottom flange. As for the column, the corrosion condition of the flanges was similar to the web. However, the columns were in better condition compared to the beams and connections from a corrosion perspective. A Severe to Very Severe corrosion condition was observed in more than 60% of the inspected connections. The severity of corrosion in the welds was larger than that of the other sub-elements such as the gussets, stiffeners, angles, and the bolts. In general, the severity of the corrosion conditions obtained from the limited number of elements inspected on-site showed that the substantial percentage of the entire inspected beams and connections (i.e. >60%) suffered from Severe to Very Severe corrosion conditions (Poor) while only less than 30% of those cases were in the no-rust to light corrosion condition (Good). The inspection results of connection sub-elements also showed that more than 40% of the cases had Severe to Very Severe corrosion conditions.

[276] The examination and testing of the concrete samples performed by Giatec from core samples of concrete taken from the mall are outlined in Exhibits 114-K and 114-L. On page 9 of Exhibit 114-K the location where the core samples were taken are set out. These core samples were taken from the collapsed area (300 series), the demolished area after the collapse (500 series) and the parking deck area (600 series).

[277] The various field tests performed on the core samples collected from the mall by Giatec is detailed in Exhibit 114-L. The testing revealed that no carbonation was found in the samples. The corrosion found in the hollow core slabs and toppings were related to chloride. There was corrosion in the topping almost everywhere. With respect to the hollow core slabs the corrosion activity was located mostly on the end of the hollow core slabs. The concluding remarks are detailed at page 22 of Exhibit 114-L.

[278] After Giatec performed the field testing of the core samples there was laboratory testing done. This laboratory testing performed and the results of that testing are set out in Exhibit 114-K. As noted on page 3 of Exhibit 114-K, testing was performed to assess the quality of the concrete topping and the hollow core slabs. In general, there was no significant difference found in the quality of the concrete in the area of collapse of the mall as compared with other areas of the mall. With respect to the concrete topping, the level of chloride was found to be higher closer to the surface and diminished in amounts deeper into the concrete. With respect to the hollow-core slabs, Dr. Ghods reported that, “The level of chloride in the hollow core concrete slabs was consistently higher than the chloride threshold and it was relatively consistent at various depths”.

[279] The testing performed by Giatec revealed that there was no deficiencies in the hollow core slabs, including the chloride level, that are attributable to the construction of the mall. The corrosion is more likely attributable to water leakage through the joints than to an initial chloride level when the mall was constructed. The chloride levels were relatively higher in the hollow core slabs as compared to the concrete topping.

[280] As to the strength of the sample taken from the concrete hollow core slabs, it met the specifications of what was required. Therefore, there is no issue with respect to the strength of the concrete that was used in the construction of the Algo Centre Mall in Elliot Lake, Ontario.

[281] Dr. Ghods testified that the overall quality and integrity of the hollow core slabs at the mall was good. He testified that there was some corrosion activity that was related to water infiltration which contributed to corrosion in the pre-stress cables in the hollow core slabs. Dr. Ghods testified that if there was better protection on top of the hollow core slabs you would not see that level of corrosion in the pre-stress cables in the hollow core slabs. It was the opinion of Dr. Ghods that environmental conditions caused the corrosion found and the corrosion was not attributable to any defect in the concrete.

[282] In assessing the evidence of Dr. Ghods, I found him to give his evidence impartially, in a thoughtful and balanced way. He gave answers to the questions posed to him only after careful consideration and deliberation and had the ability to explain technical matters in an understandable way. It was clear from the manner in which Dr. Ghods gave his evidence and the explanations that he provided that he has a vast knowledge in his area of expertise.

[283] Aaron Dinovitzer is a professional engineer employed by BMT Fleet Technology based out of Ottawa, Ontario. He is the vice-president of the Engineering and Technology Group at BMT. Mr. Dinovitzer looked at the welded connection in the steel structure at the Algo Centre Mall at the request of the lead forensic investigator, Dr. Hassan Saffarini. Mr. Dinovitzer was qualified as an expert at the trial to give opinion evidence with respect to the mode and rate of degradation, the extent of degradation and the remaining capacity of connections and the mode and mechanism of connections. The vast majority of Mr. Dinovitzer’s work has been in steel structures.

[284] Entered as Exhibit 114-H at the trial is the report produced by BMT Fleet Technology with respect to the mall. The work done by BMT and Mr. Dinovitzer to produce this report was done in the laboratory. Mr. Dinovitzer did not attend on-site at the Algo Centre Mall in Elliot Lake, Ontario. Page 1 of Exhibit 114-H sets out the scope of work performed by BMT as follows, “BMT Fleet Technology (BMT) was tasked to complete a metallurgical and structural investigation of the structural elements removed from the Algo Mall and delivered to the BMT test labs”. The report goes on to comment that, “BMT’s role in this investigation was focused on the connection detail (welded double angle beam connection) suspected to have precipitated the collapse of the mall roof top parking surface”.

[285] The nature of the testing performed by BMT is set out in the report. BMT used as a comparator a connection that had not failed. As to the failed connection, Mr. Dinovitzer noted in his evidence that the degree of corrosion he observed was “striking”. He commented that at first it was difficult to identify the bolts so the area had to be cleaned off. Mr. Dinovitzer also commented that this level of corrosion is not seen frequently in a building structure.

[286] When he looked more closely at the steel surfaces in the area that failed, Mr. Dinovitzer noted that there was a “fair amount of corrosion on the surface” in that area. He also noted that the corrosion rate is “very much environment driven”. Mr. Dinovitzer testified that the corrosion pits on the surface of the flange tested showed “an advance state of corrosion”. The steel itself was in compliance with the material specifications required at the time the Algo Centre Mall was built. The corrosion rates in the steel tested by BMT were “high” in Mr. Dinovitzer’s opinion. The rates of corrosion are a function of environment. A damp, water infiltrated environment would corrode the steel faster. Mr. Dinovitzer testified that in what he tested, the rate of corrosion was “like what we would expect in a marine environment”. That means that the rate of corrosion was similar to that of a marine environment. As the corrosion process advances the weld diminishes in size which results in a decrease in load capacity and ultimately the weld fails. Mr. Dinovitzer was of the view that the corrosion process had “gone on for some period of time”. He testified that “certainly for many months the corrosion process went on”.

[287] The conclusions of BMT are set out at page 47 of their report (Exhibit 114-H) and reads as follows:

The investigation completed by BMT Fleet Technology Limited did not identify any specific issues with the original construction quality of the welded connection that failed. The measured material properties were in good agreement with the specified properties of the material listed in the original design drawings (Section 4.5).

The connection detail that failed experienced a significant level of corrosion degradation (Section 5.1) reducing the load carrying capacity of the connection detail. The weld corrosion rate was accelerated due to the “marine” (Section 5.2) like environment (moisture and salinity) and the welding electrode chemistry that resulted in localized preferential corrosion of the weld metal after the connection protective coating became ineffective (Section 4.4).

The fractographic evidence in the weld failure region, from 130 to 260 mm from the top of the weld, showed the failure surface was pitted due to corrosion and included black oxide indicating that the failure occurred along the weld some months before final separation (Section 3.1).

The macrographic presentations also indicate metal loss in the assembled weld connections (Section 4.2). The larger losses are seen at a section plan 130 mm where the leg length of the connection to angle section is at the minimum. This observation suggests that a significant amount of material was lost due to the corrosion process that continued after the weld fracture.

The micrographic examination (Section 4.3.3) indicates that it is most likely that the last ligament of the connection to fail was the upper end of the angle section of Side 1. This comment is supported by several factors including the rotation (or prying) of the remaining piece of the angle section form the column flange, and the absence of corrosion pits on this failure surface. In order for the deformation observed in the angle component to occur, the bulk of the welded connection must have failed prior to separation of this ligament.

DISCUSSION/ANALYSIS

[288] The approach to determine the culpability of Robert Wood for criminal negligence does not change because Mr. Wood is a professional person. The modified objective test in Beatty still applies, that is, the court must consider whether the accused’s actions constituted a marked and substantial departure from the norm and whether the accused had the requisite mental state.

[289] However, the “norm” that is deviated from must be considered in the factual context of the case. Because Mr. Wood is an engineer, the court must consider the test of a “reasonable engineer” rather than a “reasonable person”. For example, in R. v. Herkamp, 1999 Carswell Ont. 4721, Horgan J. of the Ontario Court of Justice determined that whether a Catholic Children’s Aid Society (CCAS) intake worker should be committed to stand trial for criminal negligence required evidence of “a marked and substantial departure from the standard of a reasonable CCAS intake worker in the circumstances”. [Emphasis added]

[290] Similarly, in R. v. Swanney, 2006 BCSC 1766, 215 C.C.C. (3d) 120, the accused was a physician on trial for criminal negligence. In setting out the legal test, Brown J. stated that the Crown had to establish that Dr. Swanney’s conduct showed a “marked and substantial departure from the standard of behaviour expected of a reasonably prudent doctor in the circumstances, that is a doctor licensed to prescribe methadone, a doctor having and using reasonable knowledge, skill and care as required by s. 216.” [Emphasis added]

[291] In Swanney, Brown J. took the same approach in determining what the “norm” was. At paragraph 91 of the decision, Brown J. states, “To constitute a norm, I must be satisfied that that norm was the practice of reasonable trained medical professionals in the position of Dr. Swanney, that is, doctors licenced to prescribe methadone.”

[292] Therefore, the question I must consider is whether the actions of Robert Wood demonstrated a marked and substantial departure from the actions of a reasonably prudent engineer conducting a structural assessment. To answer that question, I turn my mind to the “norm” as it applies to this case.

[293] Although it is a civil case, the Ontario Court of Appeal makes some interesting comments about the standard of care for professionals in the case of 495793 Ontario Ltd. v. Barclay, 2016 ONCA 656, 132 O.R. (3d) 241, and about establishing the standard of care in particular. In that case the plaintiff was suing the lead police investigator and the Police Services Board for damages for negligent investigation. The court commented at paragraph 53 of the decision that “The general rule is that the content of the standard of care of a professional, such as a police officer, will require expert evidence”. At paragraph 57 the Ontario Court of Appeal discussed the exceptions to this general rule and stated as follows:

Epstein J.A., on behalf of the court in Krawchuk, identified two exceptions to the general rule that it is not possible to determine professional negligence without the benefit of expert evidence. The first, as mentioned above, is in nontechnical matters within the knowledge and experience of the ordinary person. The second is where the impugned actions are so egregious that it is obvious that the defendant’s conduct has fallen short of the standard of care without even knowing precisely the parameters of the standard of care. Epstein J.A. explained, at para. 135, that ‘this second exception involves circumstances where negligence can be determined without first identifying the parameters of the standard of care rather than identifying a standard of care without the assistance of expert evidence’.

[294] In my view, the principles set out above are of guidance to this court in deciding a criminal case. If this is the standard in a case that is decided in a civil matter on a balance of probabilities then similar, if not more stringent, standards would apply in a criminal case where culpability is found only upon proof beyond a reasonable doubt and penal sanctions follow the result.

[295] The aforementioned exceptions do not apply. First, the case at bar does not involve “nontechnical” matters where the knowledge is within that of the experience of an ordinary person. The process of conducting structural evaluations on buildings and reporting on them is not within the knowledge and understanding of this trier of fact.

[296] Second, on the evidence before me I cannot conclude that the actions of Robert Wood are so egregious that it is obvious that his conduct has fallen short of the standard of care without knowing precisely what the parameters of the standard of care are.

[297] Therefore, expert evidence is required to evaluate whether the conduct of Robert Wood showed a marked and substantial departure from the standard of behaviour expected of a reasonably prudent engineer conducting a structural assessment. Although numerous lay persons attended at the Algo Centre Mall in Elliot Lake, Ontario and reported on its condition throughout the years, in my view, I cannot use their observations as the prism through which I determine whether Mr. Wood’s conduct showed a marked and substantial departure expected of a reasonably prudent engineer in the circumstances.

[298] The court has the benefit of some expert evidence, albeit not a great deal, pertaining to the inspection of building structures for the purpose of conducting a structural assessment. Dr. Pouria Ghods testified that when conducting a visual inspection of the steel structure you need to be able to see it; you need a clear view of the element that you are inspecting. As Dr. Ghods put it “if you want to inspect something you have to be able to see it”. Dr. Ghods also testified that if something is covering the elements, for example fireproofing insulations, it needs to be scraped away so you have a clear view of the element that you are inspecting. Dr. Ghods indicated in his evidence that loss of section in a steel beam is something that is measured using a calibre or ultrasound machine.

[299] Dr. Hassan Saffarini provided similar evidence as Dr. Ghods as to what is required of an engineer when conducting a structural inspection of a building. When asked what is needed to do a proper inspection, Dr. Saffarini testified that:

To start with you have to be close to that member - with sufficient – some sort of scaffold or ladder so that you are within reach. You have to strip the cover. You have to set visual access of the affected beam. Then when you have a beam or connection or column that is kind of wrapped in – in some form or another, that wrapping has to be removed. In this particular case, the wrapping is the fire protection, which needs to be peeled off as well.

[300] Dr. Saffarini goes on to say in his evidence, “I mean, you have no way of knowing what’s going on if it’s already concealed.”

[301] Dr. Saffarini also testified that loss of section of a beam is typically measured after cleaning the site off, such as removing corrosion with a wire brush.

[302] We know from the evidence that apart from a visual observation, Robert Wood did not do testing in either his 2009 or 2012 inspection to measure loss of section in the steel members. We know that both a calibre and ultrasound machine were available to Mr. Wood during his inspections of the mall, but he did not use them. Mr. Wood’s evidence is contradictory as to whether he removed items from the beam to inspect them although the evidence of Terry Neave was that Mr. Wood scraped a steel member to examine it when he did his 2012 inspection.

[303] In general terms there were no written guidelines or protocols which governed professional engineers in Ontario in 2009 or 2012 when Robert Wood conducted his inspections at the mall to assist with a determination of the appropriate standard of care. This fact was confirmed to the court by Gerard McDonald who is the Registrar of the Professional Engineers of Ontario.

[304] Mr. McDonald described to the court the distinction between a bulletin or guideline and a standard. A bulletin is designed to give guidance as to best practices to be followed by an engineer in the conduct of his or her work. A guideline is also designed to provide guidance, but carries more weight than a bulletin. A standard takes what is in the guideline and incorporates it into a regulation which an engineer is obliged to follow or face disciplinary action if he or she does not. During his testimony, Mr. McDonald made it a point to stress that these guidelines or bulletins as to best practices are not obligatory for an engineer to follow and that it must be recognized that every situation is “unique” and an engineer takes this into consideration in the course of his or her work.

[305] Although there was no bulletin or guideline in effect with respect to the inspection of a steel structure in 2009 or 2012 when Mr. Wood did his inspections of the mall, in November 2012 as a direct result of the partial collapse of the mall, a Professional Practice Bulletin was produced by the Professional Engineers of Ontario with respect to “structural engineering assessment of existing buildings”. On November 17, 2016 this bulletin was made into a guideline. Gerard McDonald indicated in his evidence that the intention of the Professional Engineers of Ontario is to have this guideline enacted into a standard thereby making it obligatory for engineers in Ontario to follow the details set out in the document when conducting structural engineering assessment of existing buildings.

[306] This professional practice bulletin was entered as Exhibit 155. The bulletin makes it clear that structural engineering assessments of existing buildings can be conducted only by engineers or people supervised by engineers. Under the section of the bulletin titled “Inspection”, the following comments are made:

If inspections are being conducted because buildings were affected by potential structurally compromising events, such as fires, vehicle impact or flooding, engineers may choose to limit the scope of their assessments to the structural elements that were affected by the events, as determined by their visual inspections. In such situations, invasive inspections and testing might be required.

[307] Also, under the section “Inspection” the bulletin states, “Engineers must bear in mind that their duty to protect the public welfare is their highest duty, superseding confidentiality issues between clients and engineers”. Despite the fact this bulletin was not in place when Robert Wood did his inspection, Mr. Wood recognized this duty to the public as indicated in the evidence that he gave to the court.

[308] Under the heading “Analysis” in the Professional Practice Bulletin, the following comment is made:

Engineers need to quantify observed structural deterioration or defects and analyze their potential impact on structures, as well as provide engineering opinions on the potential impacts of the deterioration or defects. For example, a structural steel element under corrosion should be measured for a section loss and the engineer should provide an engineering opinion on the potential impact of the measured loss.

[309] In applying the bulletin, it is obvious that the best practice would have been for Robert Wood to measure the section loss on the beam he identified in his October 28, 2009 report as a beam that was “in the most severe areas of leakage”, i.e. the steel beams along line 16, which is the steel beam that ultimately failed in its connection in June 2012. Having said this, the bulletin was not in effect when Mr. Wood inspected the mall in 2009 and 2012, and therefor is of limited assistance in determining the appropriate standard of care. Instead, in 2009 and 2012, what was to be inspected and how it was to be inspected was left to the judgment of the individual engineer conducting the inspection who relying on their education and experience in assessing the situation, subject to some basic governing principles as to how inspections were to be conducted as identified by Dr. Saffarini and Dr. Ghods in their evidence.

[310] Turning back to the evidence of Dr. Saffarini, it is clear from his viva voce evidence and the contents of the NORR Report that Robert Wood was not the only professional engineer who missed obvious signs of water infiltration in the mall or underestimated the extent of the water infiltration in the mall.

[311] A number of the professionals who inspected the mall were tasked with the same inquiry as Robert Wood, to provide a building condition assessment or a structural condition assessment of the mall. In particular, as recently as June 17, 2009, Pinchin Environmental Ltd. conducted a building condition assessment at the Algo Centre Mall. The results of this assessment are detailed at pages 34 and 35 of the NORR Report. As indicated at page 34 of the NORR Report, “Pinchin reported that the parking deck was in satisfactory condition with minor water infiltration at specific areas which the owner was in the process of repairing.” Dr. Saffarini goes on at page 35 of the NORR Report to observe that, “It was reported by Pinchin that no major deficiencies existed within the visibly accessible components of the structure which would compromise structural integrity”.

[312] In the executive summary section of the NORR Report at Page X, Dr. Saffarini comments that “a number of reputable architecture and engineer firms inspected the building with various objectives and varying scope” and that “steel corrosion went unnoticed or underestimated by most consultants who inspected the mall”. Dr. Saffarini goes on to say at Page X of his report “none of the engineers’ reports raised an alarm regarding the corroding steel frame nor did they suggest any requirements to monitor the corrosion”.

[313] On Page X of the NORR Report, Dr. Saffarini comments:

The likely condition of the structure over the past few years had been as bad as it was observed by NORR in July 2012. Almost half of the locations inspected were in severe to very severe conditions of corrosion where remedial actions typically would have been required. The clean bill of health given to the structure by a number of consultants in the past for years before collapse is quite alarming.

[314] Further, on page 129 in the conclusion section of his report, Dr. Saffarini makes the following comments:

There is ample evidence that flags had been raised by workers in the mall, patrons, City inspectors and tradesmen. These warnings were not dealt with duly and effectively. The owners were frustrated with the leakage but were not focused on the structural aspect, perhaps due to a lack of appreciation of the seriousness. There were structural engineers inspecting the mall at one point or another throughout the life of the building. In particular in the last four years there were as many inspectors. These had varying degrees of scope but at least two of them, Pinchin and MRW, issued unequivocal reports attesting to the soundness of the structure.

[315] Dr. Saffarini offered a possible explanation as to why this occurred, stating that building structural engineers are not typically acquainted with failures due to corrosion. Dr. Saffarini implies that the situation at the Algo Centre Mall was a unique one when he observes that “digging into the literature, one is hard pressed to find a similar example where a carbon-steel framed building in North America or Europe continued to corrode to the point of failure, when no other extreme case of loading contributes to failure”.

[316] Although there was ample opportunity given to numerous professionals prior to the collapse to detect the level of corrosion and the effect it would have on the steel members in the mall, all of the professionals failed to pick up on that fact.

[317] The question as to how the level of corrosion and the level of water infiltration at the mall could not be noticed by an engineer inspecting the mall was put to Dr. Saffarini, as an expert, and he gave the response which I have detailed earlier in my judgment at paragraph 263. Despite already discussing this it is important to repeat Dr. Saffarini’s evidence on this point. It is as follows:

Q. In your opinion, given what you saw at the Algo Mall during your on-site investigation, could an engineer acting in their professional capacity who’s knowledgeable of their obligations, not notice the deterioration of the structure?

A. It is – it is inconceivable that they would not notice the – the deterioration. The next question that one would ask is it conceivable that one would – would notice that and would not have the right judgment to deem it a safety concern? It is conceivable. You know, it’s not inconceivable, but it is inconceivable that – that the signs that are there would – would not be observable by – by any engineer who is there with the intent to look. So, if anybody is there with the intent to look, they would clearly see that there are serious corrosion – there is a serious corrosion issue that would be clear. The fact that a serious corrosion issue in a structure means that a structure can be compromised becomes part of basic kind of knowledge – to what extent, then that is where the engineering judgment is to be – to be applied.

THE COURT: So – so just so I understand that answer, Dr. Saffarini – so, it’s – it’s inconceivable or sort of impossible that an engineer looking at the Algo Center Mall would not see that there is corrosion or deterioration in the building, but it’s not – it’s not – it’s not inconceivable that the exercise of his or her judgment would leave them to conclude that it’s – it’s not a safety issue.

A. That would be a poor judgment, definitely, a poor judgment. Is it – is it conceivable that one engineer or the other would – would apply that poor judgment is – is what I am – I’m characterizing as conceivable. Is it probable? How probable, it is conceivable that some engineer would – would lack the right judgment to understand that this is truly a safety hazard and – and basically in what I’m saying is that this engineer who would apply that judgment may not apply it out of malice, he would simply apply it out of poor judgment.

[318] In my view, this is crucial evidence as to the standard of care expected of a reasonable engineer in the circumstances and important commentary on the consideration of whether the conduct of Robert Wood showed a marked and substantial departure from that expected of a reasonable engineer in the circumstances. Dr. Saffarini’s evidence is that it is inconceivable that an engineer would not notice the deterioration but it is conceivable that an engineer would notice the deterioration and not deem it to be a safety concern. In other words, it is conceivable that even if Robert Wood saw the level of corrosion and deterioration in the mall he could have still concluded that it was safe. In Dr. Saffarini’s opinion such a conclusion would have been poor judgment; it would be a conclusion of the engineer based on poor judgment but a judgment not applied out of malice.

[319] I am cognizant of the fact that in law malice does not have to be established by the Crown as an essential element on a charge of criminal negligence. However, in my view, the expert evidence of Dr. Saffarini is clear that an engineer could have concluded that the mall was safe despite the level of corrosion and deterioration in the mall. It may have been a bad conclusion to reach, a conclusion based on poor judgment, but an engineer could have reached this conclusion nonetheless.

[320] Assistant Crown Attorney Kirk commented on the evidence of Dr. Saffarini, quoted above, during his submissions to the court. The Crown took the position that the inspection of the mall conducted by Mr. Wood was so inadequate that he did not get to the stage to start making a poor judgment about the condition of the mall. As far as the Crown is concerned, Mr. Wood, as a result of his deficient inspection, did not get himself in a position to form a judgment, poor or otherwise, as to the condition of the mall. In my view, this argument does not explain or address Dr. Saffarini’s conclusion that an engineer could have seen the problems that existed in the mall and still have concluded that the mall was safe, albeit a conclusion based on poor judgment.

[321] Much was made by the Crown and a great deal of time was spent on the changes that Robert Wood made to the May 3, 2012 report and the effect of those changes in the report. With respect to the 2012 inspection and report, let me make it clear from the outset that my view is that Mr. Wood was derelict and dishonest in not disclosing to the owner of the mall that his engineering licence was suspended and that he was not a licenced engineer at the time of his inspection of the mall on April 12, 2012 and his report dated May 3, 2012. Although Mr. Wood signed the report as “President of M.R. Wright and Associates Co. Ltd.,” (which he was) nowhere in the report does he identify himself as an “Inspector” or anything other than an engineer. Anyone reading the report of May 3, 2012 would conclude that Mr. Wood was authoring the report as an engineer and it would be an erroneous conclusion to reach. Having said that, the evidence is clear that the same overarching duty to the public would apply to an inspector as an engineer and Mr. Wood’s evidence was that he believed he was bound by this overarching duty to the public when he inspected the mall on April 12, 2012 and prepared the report (or should I say reports) dated May 3, 2012.

[322] The court has the benefit of the expert opinion evidence of Dr. Hassan Saffarini as to whether it is usual for an engineer to change a report at the request of a client and whether it is proper for an engineer to do so. Dr. Saffarini testified that it is not unusual for a client to ask for a change in an engineering report. It is the effect of the change that is important. Dr. Saffarini testified that “clients should not be allowed, permitted to alter in any way our comprehensive, professional opinion as expressed in whatever format that we kind of produce”. Dr. Saffarini went on in his evidence concerning changes to an engineering report to state:

It means that – by modifying that piece of reporting, that a view of the – of the report would have a different impression of my opinion than if this was not altered by the owner. Then in that case my professional opinion has been compromised. It’s not entirely my professional opinion.

[323] I took from the evidence of Dr. Saffarini that various portions of an engineer’s report could be changed at an owner’s request so long as the engineer did not compromise or alter the ultimate opinion or conclusion reached in his report. It is not difficult to conclude that the removal of the words “ongoing” to describe the leakage from the parking deck and the removal of the words “of particular concern” in the second version of the May 3, 2012 report to describe the parking deck leakage in the areas of Zellers, and the expansion joint over the municipal library leave the reader of the report with a different impression as to water infiltration in the mall than he would be left with had the words remained in the report. With respect to the alteration of the May 3, 2012 report, it is important to note that in his evidence Robert Wood agreed with the Crown’s suggestions that the removal of picture 7 in his first report was entirely misleading of what he saw in his April 2012 inspection of the mall. In other words, a more accurate report of what Mr. Wood saw in his 2012 inspection would have existed had picture 7 remained in his report.

[324] The question becomes whether the aforementioned changes to the May 3, 2012 report alter the ultimate conclusion reached by Robert Wood, as set out in his report. Has acceding to the request of the owner in changing the report “altered Mr. Wood’s comprehensive, professional opinion”, using the test expressed by Dr. Saffarini? My view is that the changes that Robert Wood made to the May 3, 2012 report did not change his overall opinion expressed in his report or his overall conclusions reached after his inspection of the mall. Throughout all versions produced of the May 3, 2012 report, the last paragraph on page 1 of the report has remained the same, namely, “It is our opinion that the observed rusting at this time has not detrimentally changed the load carrying capacities of the structure, and no visual signs of structural distress were observed.” I find that this overall “comprehensive, professional opinion” has remained the same throughout all versions of the May 3, 2012 report. I find that the ultimate opinion was not compromised by the changes to the report requested by the owner and made by Mr. Wood and that the changes made to the report were in keeping with the usual practice of a reasonable engineer.

[325] A troubling aspect of the evidence that unfolded with respect to the inspection conducted by Mr. Wood in 2012 was the fact that he did not inspect or examine the steel beams along line 16 (at the ticket kiosk) although he identified the beams in this are as an area of concern with respect to water leakage in his October 28, 2009 report. It appears from the evidence that Mr. Wood did not take his October 28, 2009 report to the mall in April 12, 2012 when he inspected the mall or review it in any detail, if at all, prior to conducting his 2012 inspection. All of this is made more troubling given the fact that it was the connection on this beam at gridline 16 that failed on June 23, 2012 leading to the partial collapse of the mall.

[326] Robert Wood’s explanation for not inspecting Beam 1 at gridline 16 in 2012 was that he did not see leaking in that area and therefore determined that it was not an area that needed to be inspected. As Mr. Wood put it in his evidence, “I made a judgment that there was no leaking at that area, and, therefore, my time was better spent looking at other areas”. Evidence from lay witnesses who testified at the trial support the fact that the leakage problems at the mall were worse at certain times of the year and there were periods of time when the mall was not leaking, although this would not last. It must also be borne in mind that Terry Neave confirmed in his evidence that the mall was not leaking on April 12, 2012 when Robert Wood inspected the mall. Events subsequent to the April 12, 2012 inspection show that Robert Wood was very wrong in his assessment not to inspect Beam 1 and exercised colossal poor judgment in not inspecting in 2012 the beam he identified as being “in a location of significant water leaks”.

[327] Does the failure to inspect Beam 1 along gridline 16 constitute a marked and substantial departure from what one would expect from a reasonable engineer? The court has no expert evidence to suggest that it is. Mr. Wood’s explanation might be reasonable with respect to engineering practices and the exercise of his judgment, and this trier of fact does not have the knowledge or experience to suggest that it is not without the assistance of opinion evidence. I cannot conclude that this conduct of Mr. Wood is so egregious that it is obvious that his conduct has fallen short of the standard of care expected of a reasonable engineer.

[328] Having said this, I can indicate that this whole issue of Mr. Wood not inspecting Beam 1 on gridline 16 in 2012 and the evidence surrounding this has weighed heavily on me in considering whether Mr. Wood has shown wanton or reckless disregard for the lives or safety of others.

[329] The experts testified that what they found in the Algo Centre Mall in Elliot Lake with respect to water infiltration and the resulting corrosion of steel members was “a marine-like environment”. In fact, the steel elements in the mall were categorized using the Ontario Structure Inspection Manual (OSIM), which is usually reserved for structures exposed to the elements, such as boats and bridges, and not structures expected to have an enclosed envelope, such as a mall. All of this begs the question, how could Mr. Wood have missed water infiltration resulting in corrosion so significant that the mall was like a marine environment? The same question can be asked of the other engineers and architects who assessed the Algo Centre Mall over the years, all of whom underestimated or failed to appreciate the level of steel corrosion and deterioration in the mall, according to the evidence of Dr. Hassan Saffarini, the author of the NORR Report. Perhaps the answer to the question lies in the observations of Dr. Saffarini made on Page X of the NORR Report in which he states:

The clean bill of health given to the structure by a number of consultants in the past years before collapse is quite alarming. One explanation that comes to mind is that building structural engineers are not typically acquainted with failures due to corrosion. In digging into the literature, one is hard pressed to find a similar example where a carbon-steel framed building in North America or Europe continued to corrode to the point of failure, when no other extreme case of loading contributes to failure.

[330] It is not difficult to conclude on the totality of the evidence that Robert Wood failed to do many things that would be expected of a reasonable engineer in his 2009 and 2012 inspections of the Algo Centre Mall in Elliot Lake, Ontario. Mr. Wood did not scrape beams to get the best view of the steel members. Mr. Wood did not do testing with calibres or ultrasound equipment to determine loss of section in the beams although these instruments were available to him to do the testing. At times Mr. Wood inspected steel members from floor level when he should have used a ladder to view the steel member from an arm’s length distance which is the preferable practice to get the vest view of what you are inspecting. As Dr. Ghods put it, “you can’t inspect what you can’t see”. Mr. Wood failed to inspect Beam 1 at gridline 16 in 2012 although he identified this area as an area of concern with respect to water infiltration in his 2009 report. Mr. Wood did not review his 2009 report resulting from his inspection of the mall when he inspected the mall in 2012 and produced the May 3, 2012 report. Clearly, Robert Wood did not observe in April 2012 what Dr. Saffarini and Dr. Ghods observed in July 2012, and it is difficult to understand or appreciate why that is.

[331] These facts must be considered against the definition of criminal negligence as set out in s. 219(1) of the Criminal Code and the jurisprudence that guides the court as to what constitutes criminal negligence in law. The requirement that the Crown must prove beyond a reasonable doubt on what Robert Wood did or omitted to do he showed wanton or reckless disregard for the lives or safety of other persons elevates the test above that required for civil negligence. In criminal negligence a mere departure from the standard expected of a reasonably prudent engineer is not sufficient to attract penal liability. Wanton or reckless disregard for the lives and safety of others must be proven. As noted in the jurisprudence, this elevated standard requires proof of an “unrestrained disregard for the consequences or “a complete disregard for the consequences of one’s action”. (See paragraph 29 of this judgment.)

[332] As also noted in the jurisprudence, proof of this wanton or reckless disregard for the lives or safety of other persons requires proof of conduct that exhibits a marked and substantial departure from what a reasonable person (in our case, a reasonable engineer) would do in the same circumstances.

[333] This onus or burden of proof is for the Crown to meet beyond a reasonable doubt, not on a balance of probabilities, which further elevates the criminal standard beyond that required to establish civil negligence.

[334] I have struggled greatly with my decision in this case. After considering all of the evidence presented at the trial, I am not satisfied that the actions or omissions of Robert Wood, although they may meet the civil standard for negligence, are elevated to the level required for criminal culpability beyond a reasonable doubt. On review of the totality of the evidence, I am left with a reasonable doubt. Having been left with that doubt with respect to the actus reus it is not necessary for the court to discuss the mens rea element of the offence.

[335] The fact remains that there were many other professionals, engineers and architects who inspected the Algo Centre Mall in Elliot Lake, Ontario during the course of its operation who concluded, as Robert Wood did, that the mall was structurally sound. Although Dr. Saffarini found this surprising and even alarming, the fact remains that other professionals reached the same conclusion as Robert Wood did with respect to the condition of the mall. None of these professionals raised concerns that would lead anyone to conclude that the mall was unsafe. In his evidence, the Crown’s lead expert, Dr. Hassan Saffarini testified that an engineer who saw the condition and level of corrosion in the Algo Centre Mall could have still reached the professional judgment that the mall was safe. Although this judgment would be “poor judgment”, in the words of Dr. Saffarini, I conclude from the evidence of Dr. Saffarini that it would not be an act or omission that reflects an unrestrained disregard for the consequences. In other words, the actions do not elevate to a marked and substantial departure from what a reasonable engineer would do in the same circumstances.

[336] At the time Robert Wood conducted his inspections of the mall in 2009 and 2012, and prepared his reports following his inspections, there were no written standards for engineers to follow in conducting structural assessments of existing buildings. What the engineer brought to bear in such inspections was their experience and education. Dr. Saffarini called for guidelines in the concluding paragraph of the NORR Report in which he states:

In closing it is worth reiterating the need to increase awareness among the engineering community and authorities with jurisdiction in regard to the seriousness of corrosion in steel buildings. Leakage in buildings should be dealt with in a similar fashion as for example a loss of fire protection and should be dealt with promptly. Structural engineers conducting inspection of steel buildings need to use a systematic approach which includes measurement of loss of section, review of members and connections, ascertainment of sources of corrosion catalysts and informing owners of the need for future inspections where the conditions call for such revisits. Guidelines for the inspection of building structures and regulations to avoid calamities such as that of the Algo Mall Centre may be in order.

[337] As recommended by Dr. Saffarini, such a professional practice bulletin was published by the Professional Engineers of Ontario, which governs engineers in Ontario, in November 2012 as a direct result of the tragic occurrence in June 2012 at the Algo Centre Mall in Elliot Lake, Ontario.

CONCLUSION

[338] Robert Wood is in a criminal proceeding. This is not a civil proceeding where being satisfied on a balance of probabilities, i.e. whether an event more likely than not occurred, is the standard. This is a criminal proceeding where all the essential elements of the offence must be proven by the Crown beyond a reasonable doubt. This is a high standard and certainly a much higher standard than proof on a balance of probabilities, the civil standard.

[339] Proof beyond a reasonable doubt is a cornerstone of the Canadian criminal justice system and it must be respected and applied. The court must apply the third prong of the test in W.(D), referred to earlier in this judgment:

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[340] In answering that question, I have considered and weighed the totality of all the evidence that I have heard in this lengthy trial, which involved the testimony of more than 50 witnesses. Although I have dealt with only portions and segments of the evidence in my reasons in coming to a conclusion, I have considered and reflected at length on all of the evidence I have heard at this trial.

[341] Upon reflecting upon that evidence, I am unable to conclude with the degree of certainty required in law to establish beyond a reasonable doubt that the actions of Robert Wood constituted a marked and substantial departure from that of a reasonable engineer to establish that he acted with wanton and reckless disregard for the lives and safety of other persons making him guilty of the offence of criminal negligence, as defined in s. 219(1) of the Criminal Code of Canada.

[342] This court’s decision is not to be taken as condoning the actions of Robert Wood with respect to his inspection of the Algo Centre Mall in Elliot Lake, Ontario, or endorsing his flawed structural reports following his inspections in 2009 and 2012. Mr. Wood had the last reasonable opportunity to prevent a disaster at the mall and he failed miserably resulting in the death of two innocent people.

[343] Mr. Wood must accept a moral responsibility for what occurred on June 23, 2012 at the mall and undoubtedly the events of that day will follow him throughout the rest of his life. Mr. Wood’s engineering work related to the mall, especially in 2012, can fairly be described as shoddy, sloppy and even inadequate. Having said that, in my view, Mr. Wood’s actions did not reach the level of being criminal. I would be remiss in not saying that although this trial focused on the criminal responsibility of Mr. Wood, the evidence that I heard clearly indicated that he should not bear sole responsibility for what occurred at the mall on June 23, 2012. There is plenty of blame to go around from a neglectful, greedy owner who minimized problems and put cost ahead of people in remedying deficiencies in the mall, to officials at the City of Elliot Lake who left serious matters concerning the mall in abeyance for lengthy periods of time and did not exercise sufficient vigilance to ensure that the citizens of Elliot Lake were safe when attending the mall. Although the NORR Report sets out the reasons why Beam 1 failed and the mall partially collapsed on June 23, 2012, there is much more to the story than that. The sad tale of the Algo Centre Mall is as much about human frailties and inadequacies as it is about a connection that failed in the structure.

[344] The evidence indicates there is much to reflect upon in the comments of Sarrah Brown in her letter to the editor of the Elliot Lake Standard as far back as 2008 in which she stated, in part:

I hope we are not at some point in the future glued to our TV screens following a calamity as government officials, yet again, seek excuses and places to lay blame for their lack of action.

[345] This court’s decision is also not to be taken to minimize what occurred or the tragic consequences of the collapse of the mall on June 23, 2012. Lucie Aylwin and Dolores Perizzolo suffered horrific and unnecessary deaths. Others were seriously injured in the collapse. Having heard from some of the witnesses who were at the mall when it collapsed, it is apparent that many, even if not injured, suffered serious harm and psychological damage as a result of what occurred on June 23, 2012. The loss of life and damage to people as a result of the collapse has had a profound effect on parents, family, friends and the community of Elliot Lake at large. I could not help but notice that the parents of Lucie Aylwin were present in court, from time to time, as this trial proceeded. Their loss is obviously a terrible one. The natural order of things is disrupted when a parent loses a child. The sense of loss and grief felt