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Whistler's Gateway Loop at centre of ongoing lawsuit

Contractor's alleged lack of payment kicks off series of claims


OUT OF THE LOOP Whistler's controversial $6.7-million Gateway Loop project is at the centre of an ongoing lawsuit. - PHOTO BY BRADEN DUPUIS
  • Photo by Braden Dupuis
  • OUT OF THE LOOP Whistler's controversial $6.7-million Gateway Loop project is at the centre of an ongoing lawsuit.

Whistler's controversial Gateway Loop project is at the centre of a months-long legal battle between some contractors, consultants and the Resort Municipality of Whistler (RMOW) over payment for services.

The case sheds more light on the project and its completion delays, as well as the reality of building in Whistler.

In various Statements of Claims and their Responses filed from July 2018 until this fall, the parties raise several alleged issues, including: the design of steel connections for the beams; failing to provide clear and consistent design details; delays in decision making; failure to complete contractually required coatings on the laminated beams; negligence in causing damage to the laminated beams during handling; generally, delayed performance of contractual requirements and procedures resulting in delay and extra work, to cite a few.

None of these claims have been proven in court.

Whistler's Gateway Loop. - PHOTO BY BRADEN DUPUIS
  • Photo by Braden Dupuis
  • Whistler's Gateway Loop.

A notice of civil claim filed in July 2018 names the RMOW and B. Cusano Contracting as defendants and alleges that a subcontractor hired by Cusano—AHC-Derix Laminated Timber Solutions, Inc.—has yet to be paid for its work.

In that claim, AHC alleged it was owed, "for work performed and materials supplied" $550,423.23, and for "reasonable costs of performing work and supplying and delivering materials" in the amount of $223,706.93.

The subcontractor claimed it performed work and provided materials, with the knowledge of the RMOW, including but not limited to the supply and installation of cross-laminated timber, glued laminated timber, related steel parts and related services for the Gateway Loop.

AHC alleged it invoiced Cusano for the work, and claimed the contracting company "refused or neglected to make payment."

AHC is seeking relief in the amount of $774,130.16.

In its response filed July 30, the RMOW denied the claims, and said it is not aware of the state of accounting between Cusano and AHC, but has retained a holdback as required by the Builders Lien Act.

In its own response filed Aug. 15, 2018, Cusano denied there was merit to AHC's claims, "but to the extent that there may be," it was acts or omissions on the part of the RMOW that contributed to any loss.

Those include (but are not limited to): allegedly failing to provide necessary design information, as well as clear and consistent design details; delayed decision making concerning measures to be taken with respect to the incomplete and/or incorrect design documents; and refusing to grant Cusano reasonable extensions as defined in the main or "head" contract.

In short, Cusano alleged that the RMOW breached the head contract it had with the Vancouver-based developer, and claimed payment from the RMOW in the amount of $1.3 million.

In a separate filing on the same day, Cusano alleged AHC did not perform work and provide materials in accordance with the terms of its subcontract.

AHC denied these claims in a response filed on Sept. 6, 2018.

The RMOW, too, denied Cusano's claims in a response filed Sept. 11, and in a separate third-party notice filed the same day, the municipality named consulting firm Kerr Wood Leidal Associates Ltd. (KWL), alleging that the firm "had certain responsibilities to act as an impartial interpreter in the first instance of the contract between Cusano and Whistler."

In that claim, the RMOW denied there was merit to Cusano's claim, but to the extent that there is, KWL is legally responsible for it.

The tangled web of legal filings didn't end there.

On Oct. 26, 2018, KWL filed a third-party notice against Fast + Epp Structural Engineers—a "subconsultant" with which it had a contract that included provision of structural design and field review services for the project.

In that filing, KWL said it disputes the claims of both Cusano and the RMOW, but in the event it is found liable, it is "entitled to contribution" from Fast + Epp.

"Particulars of Fast + Epp's negligence and breach of contract include, but are not limited to," the failure to design constructible steel connections for the beams; to warn that the originally designed steel connections would not be suitable, and to prepare suitably detailed structural design drawings, according to the filing.

A second filing by KWL on Oct. 26 denied that Cusano or the RMOW suffered any loss as alleged, but if they did, it was not the fault of KWL, but of the RMOW, Cusano or Fast + Epp.

On May 10, 2019, Fast + Epp filed its response, denying KWL's claims, and alleging that, in a contract between the two parties, KWL "agreed to indemnify and save harmless" [agree to guarantee that any debt, lawsuit or claim which may arise as a result of a contract or contract performance will be paid or taken care of by the party making the guarantee] Fast + Epp against any losses, claims or damages.

The response also claims that if any of the involved parties have suffered loss, then it is for "pure economic loss and is not recoverable at law," and if KWL has suffered loss, the subcontract between the two consulting firms protects them from legal responsibility.

In the most recent filing, on Aug. 26, 2019, the RMOW sought relief from Cusano "for general and special damages for breach of contract."

After more than three years of deliberation and construction, the project was completed in July 2018 with a price tag of $6.7 million.

It remains a sore spot for many in the community.

Pique reached out to lawyers for each of the parties involved, and received just one response, from the lawyer representing AHC, who declined to comment as the matter is before the courts.

Asked for more insight into the case, and if or how the associated legal fees may impact the final budget of the Gateway Loop, the RMOW also declined to comment, saying it does not discuss such matters while they are proceeding through the courts.