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·2· · · · · · ·ELLIOT LAKE COMMISSION OF INQUIRY

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12· ·---· This is Day 31 in the Inquiry proceedings

13· ·held before the Honourable Justice P.R. Belangér,

14· ·Commissioner, at the White Mountain Academy of the

15· ·Arts, 99 Spine Road, Elliot Lake, Ontario, on the

16· ·23, day of April, 2013 commencing at 9:00 a.m.

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20· · · · · · ·REPORTED BY:· Helen Martineau

21· · · · · · · Certified Shorthand Reporter

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·1· ·A P P E A R A N C E S:

·2· ·MARK WALLACE, Esq,

·3· ·DUNCAN AULT, Esq.,

·4· ·NADIA EFFENDI, Esq,

·5· ·IVANA NENADIC, Ms.,· · · Commission Counsel

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·7· ·PAUL CASSAN, Esq.,

·8· ·MATTHEW SHOEMAKER, Esq., City of Elliot Lake

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10· ·LEO LONGO, Esq.,· · · · ·Ontario Building

11· · · · · · · · · · · · · · Officials Association

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13· ·DARREL KLOEZE, Esq,

14· ·JUDITH PARKER, Ms.,· · · Government of Ontario

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16· ·ROSS ROMANO, Esq.,· · · ·Greg Saunders

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18· ·DOUGLAS ELLIOTT, Esq.,· ·ELMAC

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·1· · · · · · · · · · · ·I N D E X

·2· · · · · · · · · · · · · · · · · · · · · · · PAGE

·3· ·MR. ELLIOTT, submissions on funding and

·4· ·payment..................................6229-6234

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·6· ·WITNESS:

·7· ·PAUL OFFICER, previously sworn

·8· ·CROSS-EXAMINATION BY MR. LONGO...........6234-6273

·9· ·CROSS-EXAMINATION BY MR. MACRAE..........6273-6284

10· ·CROSS-EXAMINATION BY MR. ELLIOTT.........6284-6297

11· ·CROSS-EXAMINATION BY MS. PARKER..........6297-6301

12· ·RE-EXAMINATION BY MR. CASSAN.............6301-6309

13· ·RE-EXAMINATION BY MR. WALLACE............6309-6315

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15· ·CHRIS CLOUTHIER, sworn

16· ·EXAMINATION-IN-CHIEF BY MS. EFFENDI......6315-6475

17· ·CROSS-EXAMINATION BY MR. MACRAE............6476

18· ·CROSS-EXAMINATION BY MR. LONGO...........6476-6494

19· ·CROSS-EXAMINATION BY MR. SHOEMAKER.......6494-6500

20· ·RE-EXAMINATION BY MS. EFFENDI............6500-6501

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·1· · · · · · · · · ·INDEX OF EXHIBITS

·2· ·NO.· · · · · · ·DESCRIPTION· · · · · · · PAGE

·3· ·NO. 2335-2361· ·City of Elliot Lake

·4· · · · · · · · · ·documents.· · · · · · · ·6316

·5· ·NO. 2360-3750· ·City of Elliot Lake

·6· · · · · · · · · ·documents.· · · · · · · ·6316

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·1· · · · · · ·---· Upon commencing at 9:00 a.m.

·2· · · · · · ·THE COMMISSIONER:· Good morning.· Mr.

·3· ·Elliott, I see you are amongst us this morning.

·4· · · · · · ·MR. ELLIOTT:· I am and I would like to

·5· ·address three points this morning.· And I regret

·6· ·any inconvenience caused by the delay to Chief

·7· ·Officer, a man for who I have the greatest

·8· ·respect.

·9· · · · · · ·First, yesterday afternoon my office

10· ·received a cheque which pays about 90% of the

11· ·accounts my firms has remitted.· However, neither

12· ·my colleague Mr. Aube, nor my colleague Mr.

13· ·Broadbent has been paid and this is unacceptable.

14· ·Despite the incomplete payment however, and in the

15· ·hope that the cheque received by my office

16· ·yesterday is the beginning of an effort to

17· ·properly honour the obligation of the Crown, I

18· ·have been instructed to resume participation in

19· ·these hearings.

20· · · · · · ·However, I regret to report that as yet

21· ·I have had no direct communications from the

22· ·Premier's office or the office of the Attorney

23· ·General regarding this disrespectful conduct.

24· ·They know how to reach me.

25· · · · · · ·Yesterday in the House in response to a

·1· ·question from Michael Mantha, MPP, the Attorney

·2· ·General claimed this matter only recently came to

·3· ·his attention.· He also said that invoices had

·4· ·only been received in February.· The latter

·5· ·answer, Mr. Commissioner, was disingenuous.· It

·6· ·was an answer that was at once completely accurate

·7· ·and totally misleading.

·8· · · · · · ·It is true that no one receiving public

·9· ·funding sent in an invoice until February.

10· ·However, the reason that no invoices were sent in

11· ·until that time is because there was no place to

12· ·send them to.· The Attorney General took until

13· ·February to establish his payment approval

14· ·process.· For a period of six months after you

15· ·were appointed, Mr. Commissioner, and while we

16· ·continued to work for our clients without pay, no

17· ·one had been appointed to approve our accounts.

18· ·We would have gladly sent invoices at an earlier

19· ·date if the Attorney General had been willing to

20· ·consider them at an earlier date.

21· · · · · · ·I know that others in this room,

22· ·including my friend Mr. Cassan, continue to

23· ·experience problems in collecting the money that

24· ·they are rightfully owed.· I will be following up

25· ·with the Premier and the Attorney General

·1· ·regarding this matter.· It is a question of the

·2· ·honour of the Crown and I will not abandon my

·3· ·co-workers just because I have made progress in

·4· ·collecting my own firm's accounts.

·5· · · · · · ·My second point, Mr. Commissioner,

·6· ·relates to the application for additional funding.

·7· ·Since the funding is now actually flowing, we wish

·8· ·to proceed with that application.· However, given

·9· ·that we no longer represent SAGE, we will be

10· ·revising our request for additional funding and I

11· ·hope to have that revised application to you, Mr.

12· ·Commissioner, later today.

13· · · · · · ·My third point relates to critical

14· ·comments made yesterday about our legal team and

15· ·our conduct.· Comments that were made without

16· ·notice to us and in our absence.· Mr. Broadbent

17· ·from our team will be attending tomorrow to

18· ·respond to those critical comments.· He would have

19· ·been here today to do so however he had

20· ·commitments in the Superior Court that he was

21· ·unable to reschedule.· He was able to reschedule

22· ·another matter to be here tomorrow.

23· · · · · · ·My presence here today, and my silence

24· ·today in the face of that criticism, should not be

25· ·interpreted by anyone as meaning that we have no

·1· ·response to offer to that criticism.· It simply

·2· ·means that I will leave that response to Mr.

·3· ·Broadbent and I will say no more on the subject.

·4· ·Those are all my submissions.

·5· · · · · · ·THE COMMISSIONER:· Well you say without

·6· ·notice to us.· It's rather difficult to give

·7· ·notice in the absence of Counsel, and particularly

·8· ·in circumstances where Counsel advises Commission

·9· ·Counsel that it will not respond to e-mails or

10· ·other correspondence.

11· · · · · · ·Now let me say this, Mr. Elliott, if

12· ·you're going to address the Tribunal, the

13· ·Commission, I will want to hear submissions from

14· ·you or from your colleagues number one about the

15· ·ethics, the professional ethics of removing ones

16· ·self from representation of clients without first

17· ·seek the Tribunal's permission, which is something

18· ·that I have never heard of before.· It may be that

19· ·this arises out of a perception that there is a

20· ·difference between a Court and a Tribunal such as

21· ·a public Commission.

22· · · · · · ·I will also wish to hear submissions

23· ·about the ethical propriety of removing ones self

24· ·from record without seeking the Commissioner's

25· ·approval, or without giving the Commissioner any

·1· ·form of forewarning, without at least attempting

·2· ·to enlist the Commissioner's assistance in

·3· ·relation to matters which flow from the

·4· ·Commissioner's recommendation to government.

·5· · · · · · ·These matters -- you spoke about

·6· ·obligations of the Crown, I am now speaking about

·7· ·obligations of Counsel.· Ethical and courtesy

·8· ·obligation of Counsel to the Commission in

·9· ·relation in particularly to the two matters I've

10· ·just alluded to, representation of clients and

11· ·simply unilateral decision to remove ones self, to

12· ·resign essentially without more.

13· · · · · · ·I say that so that you will be

14· ·forewarned and so that you are forewarned that

15· ·those are matters in relation to which I will be

16· ·expecting submissions.

17· · · · · · ·In addition, I'm advised -- we were

18· ·advised yesterday that SAGE, the other clients

19· ·that you represented, were not forewarned,

20· ·forewarned of your decision to withdraw but rather

21· ·were confidentially, to use your expression,

22· ·advised of that fact after the fact.· I say no

23· ·more and I look forward to your submissions.

24· · · · · · ·MR. ELLIOTT:· I will say no more either,

25· ·Mr. Commissioner.· Thank you.

·1· · · · · · ·MR. WALLACE:· Yes, Mr. Commissioner,

·2· ·we're prepare to continue with the

·3· ·cross-examination of Chief Officer.

·4· · · · · · ·THE COMMISSIONER:· Yes, thank you.

·5· · · · · · ·MR. LONGO:· Good morning, Mr.

·6· ·Commissioner.· Good morning, Chief.

·7· · · · · · ·PAUL OFFICER, previously sworn

·8· · · · · · ·CROSS-EXAMINATION BY MR. LONGO:

·9· · · · · · ·Q.· Sir, when you started in September

10· ·of 1981 as a Building Inspector was the mall

11· ·already constructed and occupied?

12· · · · · · ·A.· Yes it was.

13· · · · · · ·Q.· How old were you when you started

14· ·with the City?

15· · · · · · ·A.· I believe 21.

16· · · · · · ·Q.· Thank you.· And I understand you

17· ·held the position as a Building Inspector for 19

18· ·years and then you were Chief Building Official,

19· ·both acting and then actual Chief Building

20· ·Official until September of 2002?

21· · · · · · ·A.· That's correct.

22· · · · · · ·Q.· So 21 years in total.· When Syl

23· ·Allard became the Chief Building Official in

24· ·September 2002 did you retain any of those other

25· ·duties that you alluded to yesterday to the

·1· ·Commissioner that a Chief Building Official had,

·2· ·dealing with building inspection, licensing,

·3· ·property standards?· Did you retain any of those

·4· ·positions?

·5· · · · · · ·A.· No.· Those all stayed with the

·6· ·position.· The only one that I retained was I was

·7· ·secretary treasurer to the Committee of

·8· ·Adjustment, that did follow me.

·9· · · · · · ·Q.· Okay.· And when you were acting CBO

10· ·and CBO for the two and a half years did you ever

11· ·attend Council meetings on a regular basis?

12· · · · · · ·A.· No, only department heads attended.

13· ·You only attended when you had a report on.

14· · · · · · ·Q.· Thank you.· Yesterday you reviewed a

15· ·job description for the Fire Chief, and I think it

16· ·was marked as Exhibit No. 2343.· Can you advise

17· ·the Commission when was that document prepared?

18· · · · · · ·A.· Actually I think --

19· · · · · · ·Q.· Is it dated?

20· · · · · · ·A.· I believe it is.· It looks like --

21· ·actually there's no date.· But if you go by the

22· ·file directory that it came off it's got an '05.

23· ·doc so it may be 2005.

24· · · · · · ·Q.· All right, thank you.

25· · · · · · ·A.· So it would be -- it was during Troy

·1· ·Speck's term as CAO so that would narrow it down a

·2· ·bit for you.

·3· · · · · · ·Q.· When you became acting CBO and then

·4· ·CBO was there a similar job description in

·5· ·existence respecting that position?

·6· · · · · · ·A.· I believe the whole -- all the jobs

·7· ·were completed for the municipality so there would

·8· ·be one.· I believe this was for pay equity.

·9· · · · · · ·Q.· Okay, thank you.· But you don't have

10· ·one with you?· I haven't seen one produced.

11· · · · · · ·A.· No, I don't have one with me.

12· · · · · · ·Q.· Thank you.· You spoke yesterday

13· ·about the cooperation and joint inspections that

14· ·buildings and fire have done under your service as

15· ·Chief.· When you were a Building Inspector from

16· ·'81 to 1999 was there similar cooperation between

17· ·the Fire and Building Departments about

18· ·inspections?

19· · · · · · ·A.· Yes, absolutely.· That's why I was

20· ·very familiar with their procedures before I moved

21· ·over.· I worked very closely with them.

22· · · · · · ·Q.· Thank you very much.· Did you ever

23· ·undertake any Building Code inspections of the

24· ·mall?

25· · · · · · ·A.· No.· I shouldn't say that, not when

·1· ·it was constructed.· It was constructed prior.· I

·2· ·have recall of signed permits, I believe I did

·3· ·plumbing when Tim Hortons was in at the front

·4· ·where Zellers is now.· And I believe I issued a

·5· ·permit to ADSAB, which is Algoma District Services

·6· ·Administration Board, and they were in the bottom

·7· ·of the hotel on the same level as the deck.

·8· · · · · · ·Q.· Other than those experience then in

·9· ·the 22 years you were Inspector or Chief Building

10· ·Official, you would not have undertaken any other

11· ·Building Code inspections?

12· · · · · · ·A.· No.· There was very little in the

13· ·mall other than the small things like signage when

14· ·tenant spaces would change and that would be about

15· ·it.

16· · · · · · ·Q.· Thank you.· Sir, did you ever serve

17· ·any notices or orders respecting the mall property

18· ·under the municipality's Building By-Law 78-47?

19· · · · · · ·A.· I don't think there was anything

20· ·under the Building By-Law.· I have a small

21· ·recollection of somewhere through the process that

22· ·under the satellite dish by-law that they put a

23· ·very large satellite dish.· If you recall they

24· ·were like 16 or 20 feet wide on the roof which we

25· ·were concerned with the loading of the roof and

·1· ·the wind loading forces of that.· I can remember

·2· ·some involvement with that, but that would be

·3· ·about it that I can remember.

·4· · · · · · ·Q.· Thank you.· Did you ever review the

·5· ·original building permit file for the mall?

·6· · · · · · ·A.· As part of this process I did go

·7· ·through the file.

·8· · · · · · ·Q.· All right.· And in your review of

·9· ·that file -- maybe I should first ask, as a CBO

10· ·would one normally place a stamp of approval or

11· ·some identification on plans for which a building

12· ·permit is being issued?

13· · · · · · ·A.· Yeah, you would show that it was

14· ·reviewed.

15· · · · · · ·Q.· All right.· And I take it if that

16· ·was the standard practice would you be able to

17· ·advise what drawings were stamped on April 27,

18· ·1979 when the initial building permit was issued?

19· · · · · · ·A.· I don't know if I went into enough

20· ·detail on a review through the file.· What I can

21· ·tell you is the individual that was actually in

22· ·the position, Frank Hollick -- and upon reflection

23· ·they actually -- the records that they had, and

24· ·the inspections that they had I had the impression

25· ·they did a very good job.· I did get to know Mr.

·1· ·Hollick for a short term.· After he left the

·2· ·municipality he ended up working for a contractor

·3· ·who was supervising the construction on some of

·4· ·the subdivisions.· And I do remember he left

·5· ·because he did not get the position of CBO.· And I

·6· ·think he was really working pretty hard to show

·7· ·that he could do the job.· And so I think that's

·8· ·probably why they had pretty good records on that.

·9· · · · · · ·Q.· Just to put some timing to that

10· ·answer.· He was looking for the CBO job to replace

11· ·Mr. Gruhl?

12· · · · · · ·A.· That's correct.

13· · · · · · ·Q.· And that was the job that Mr. Pigeau

14· ·was hired for?

15· · · · · · ·A.· That's correct.

16· · · · · · ·Q.· And, sir, I've looked through

17· ·Relativity and I've not found any drawings that

18· ·appear to have been noted by the building

19· ·department as being the one's that were issued for

20· ·a building permit.· Have you done a similar search

21· ·and are you aware of any drawings that exist today

22· ·that show what was approved back in 1979?

23· · · · · · ·A.· No.· There's nothing in the file but

24· ·I can -- now that you bring that up I can give you

25· ·some history to that.· Essentially those drawings,

·1· ·because over the years you get stacks and stacks

·2· ·of drawings.· And at one point City Hall was

·3· ·renovated and we ended up moving to the school

·4· ·actually just down the road, a vacant school as

·5· ·City Hall was renovated.· I believe at that time a

·6· ·large majority of the drawings, which were

·7· ·probably I would say in an area of about 10 by 16,

·8· ·were moved up into the attic space of Public

·9· ·Works.· And they were all catalogued and left in

10· ·boxes up there I believe.· And I think there still

11· ·are some up there, but I believe through the years

12· ·due to mice and things, and water or whatever,

13· ·moisture that a lot of them were destroyed.

14· · · · · · ·Q.· In addition to cataloguing would you

15· ·know would they have been microfilmed, or in any

16· ·other way stored in any kind of data format?

17· · · · · · ·A.· No, not from that era.

18· · · · · · ·Q.· All right.· The Building Code at the

19· ·time say that roofing should be installed to "shed

20· ·or drain water effectively."· Do you know what the

21· ·architect proposed on his plans to meet that Code

22· ·requirement back in the day?

23· · · · · · ·A.· You're referring to the mall?

24· · · · · · ·Q.· Yes?

25· · · · · · ·A.· No.· No idea, sir.

·1· · · · · · ·Q.· All right.· And do you have any idea

·2· ·of knowing how either Mr. Gruhl or Hollick

·3· ·determined whether the water proofing that was

·4· ·shown on the building plans indeed met the Code

·5· ·requirement?

·6· · · · · · ·A.· No, no I wouldn't have that

·7· ·knowledge.

·8· · · · · · ·Q.· Sir, the evidence has been that what

·9· ·was issued in April 27 of up 1979, which was

10· ·building permit 247-79 was an initial or a

11· ·preliminary building permit, and that a subsequent

12· ·building permit was issued on April 10 of 1980.

13· ·It's Exhibit No. 3262.

14· · · · · · ·MR. LONGO:· And if I can ask Ms. Kuka to

15· ·pull it up.· I was trying to view it on Relativity

16· ·last night and I was having difficulty reading it

17· ·from my computer, and I was just wondering if it's

18· ·any better on these screens.· Exhibit No. 3262.

19· · · · · · ·BY MR. LONGO:

20· · · · · · ·Q.· Just by way of background, Chief, I

21· ·understand that this second permit was the one

22· ·that rectified what the "cost of construction" was

23· ·so they could obtain a greater fee from Algocen?

24· · · · · · ·A.· Okay.

25· · · · · · ·Q.· But there were some -- we understood

·1· ·further drawings that were submitted at that time

·2· ·as well for that permit.· And while this is being

·3· ·pulled up, when I can get the date and permit

·4· ·number on it, I was wondering have you seen any of

·5· ·the drawings that would be associated with that

·6· ·final permit, if you will, for the mall in 1980?

·7· · · · · · ·A.· No, there was no drawings in the

·8· ·file.

·9· · · · · · ·Q.· Any luck, Ms. Kuka?

10· · · · · · ·MS. KUKA:· Yes, it's coming.

11· · · · · · ·THE COMMISSIONER:· Would it be better if

12· ·we blew it up on there?· Can you see it well,

13· ·there we go.

14· · · · · · ·BY MR. LONGO:

15· · · · · · ·Q.· So I see that it's April 10, 1980

16· ·and it says, "Interior work in mall.· Shell permit

17· ·difference."· And I see in brackets, hotel,

18· ·restaurant, mall interior, a couple of other

19· ·words.· And then could you scroll further down?

20· ·Normally the -- keep going down -- the building

21· ·permit number is completely illegible on this.

22· · · · · · ·MR. LONGO:· And I think, Mr.

23· ·Commissioner, the reason is this was on a pink

24· ·sheet.· And I think it just didn't photo copy at

25· ·all?

·1· · · · · · ·MR. CASSAN:· If I can be of assistance,

·2· ·Mr. Commissioner.· I just spoke to Mr. Ewald, we

·3· ·have the original copy of this.· And if my friend

·4· ·wishes Mr. Ewald indicates he can return with it

·5· ·in about half an hour.

·6· · · · · · ·THE COMMISSIONER:· That would be great I

·7· ·think.

·8· · · · · · ·MR. LONGO:· It would be great to get a

·9· ·better copy for everybody's benefit.

10· · · · · · ·MR. CASSAN:· It is a pink document,

11· ·that's the third page of a preprinted form so it

12· ·doesn't copy well.

13· · · · · · ·THE COMMISSIONER:· It doesn't copy well.

14· · · · · · ·BY MR. LONGO:

15· · · · · · ·Q.· There is no urgency, it's just that

16· ·you have not seen the plans that are associated

17· ·with the approval from this building permit?

18· · · · · · ·A.· No.

19· · · · · · ·THE COMMISSIONER:· So we'll just hold

20· ·off on Mr. Ewald.· He can bring it in during the

21· ·lunch hour.

22· · · · · · ·MR. LONGO:· At any time.

23· · · · · · ·THE COMMISSIONER:· Thank you.

24· · · · · · ·BY MR. LONGO:

25· · · · · · ·Q.· Chief, when you arrived was the

·1· ·original building permit filed for the mall still

·2· ·an open and active file?

·3· · · · · · ·A.· No, I don't think so.

·4· · · · · · ·Q.· You think it had been closed?

·5· · · · · · ·A.· Yeah, I think it was closed.

·6· · · · · · ·Q.· Okay.· I had asked Mr. Pigeau about

·7· ·that and my recollection was he said it was open.

·8· ·In fact he seemed to suggest that most building

·9· ·permit files were left open.· That struck me as

10· ·odd but that was his evidence.· So I'd like to

11· ·just review these things with you.

12· · · · · · ·Let's fist deal with final inspections

13· ·and then we'll talk about closing of files.· Did

14· ·the Building Department routinely undertake final

15· ·inspections of construction sites for which

16· ·permits were issued?

17· · · · · · ·A.· Yes.

18· · · · · · ·Q.· And what were the purpose of those

19· ·final instructions -- inspections, excuse me?

20· · · · · · ·A.· Well to ensure that it's in general

21· ·compliance with the Code.· In the larger projects

22· ·you're doing a lot of data collection.· You're

23· ·looking for the engineer's reports, the

24· ·architect's reports the electrical safety

25· ·authority, all of the other authorities that have

·1· ·either Code or Standards that they need, you know,

·2· ·the fire alarm systems, the sprinkler systems.

·3· ·All of those certifications have to come in.· The

·4· ·TSSA they take care of the elevators and gas

·5· ·fitting and those type of things.· So you're the

·6· ·collection agency for all of those other

·7· ·documents.

·8· · · · · · ·Q.· And I take it, sir, that just

·9· ·earlier today that you indicated that that was the

10· ·kind of inspection that you would deal with the

11· ·Fire Department as well?· Both of you would go in

12· ·just to make sure you were both seeing the same

13· ·things?

14· · · · · · ·A.· Yeah.· Because it -- what it would

15· ·do is it would keep both services on the same

16· ·page.· It saved a lot of work down the road.

17· ·Because certain buildings are on the particular

18· ·design and this is actually going to, moving

19· ·forward, is going to get worse actually.· Because

20· ·you're going from prescriptive requirements to

21· ·more design factor that the architects and

22· ·engineers have a bit more flexibility.· And

23· ·understanding those just by walking through a

24· ·building make it quite a bit more difficult.

25· · · · · · ·So usually on a final walk-through

·1· ·you'll try and have either the architect or the

·2· ·engineer there and it's good that the fire service

·3· ·hears how his design and his concept are to move

·4· ·through.

·5· · · · · · ·Q.· And I take it, sir, that if the mall

·6· ·original building permit had -- file had been

·7· ·closed there must have been a final inspection

·8· ·undertaken respecting the 1979 and the 1980

·9· ·permits that had been issued originally for the

10· ·mall?

11· · · · · · ·A.· I believe so.· Because I believe

12· ·there's a -- I'm pretty sure I've seen an

13· ·occupancy permit in there.· And the reason I

14· ·remember that is because I believe it was signed

15· ·by Frank Hollick, who was I think in an acting

16· ·capacity at the time.· I believe Mr. Gruhl was

17· ·either -- I believe he was off sick or he might

18· ·have been passed away by that time.

19· · · · · · ·Q.· And I take it, sir, that when you

20· ·were there from 1981 on there was a practice of

21· ·closing building permit files?

22· · · · · · ·A.· Yes, there was.

23· · · · · · ·Q.· And when would you normally do so?

24· ·When would you normally close a file?

25· · · · · · ·A.· Well, usually if -- when it's a

·1· ·brand new building they're look to get into that

·2· ·building.· And they always call usually way too

·3· ·early and you end up with lengthy lists, but you

·4· ·try and co-ordinate it.· If it's a smaller

·5· ·building that doesn't have a professional involved

·6· ·then you're dealing usually directly with the

·7· ·owner or the general contractor.· And it's got to

·8· ·be substantially complete when you're going.

·9· · · · · · ·So majority of the things that are done

10· ·are specific -- I believe somewhere back -- I

11· ·can't remember the year, but they actually came

12· ·out with a list that are permitted things that you

13· ·can give approval.· But there was the minimum

14· ·requirements that had to be done prior to allowing

15· ·anybody in to occupy.

16· · · · · · ·Q.· And, sir, we don't have to go to it,

17· ·but won't you agree that both the Building Code

18· ·itself and· the town's Building By-Law had stages

19· ·at which the town was to be notified during

20· ·construction.· And wasn't one of the final stages,

21· ·pretty much the end of the construction, pretty

22· ·much to facilitate final inspections to be

23· ·undertaken?

24· · · · · · ·A.· That's correct.· There was various

25· ·stages through the by-law and back in the early

·1· ·days you did a lot of chasing, because they were

·2· ·not calling for inspections.· It was a boom time

·3· ·here and just had to get it done.

·4· · · · · · ·MR. LONGO:· On that point, if I could

·5· ·ask Ms. Kuka to pull up Exhibit No. 3159, please.

·6· · · · · · ·BY MR. LONGO:

·7· · · · · · ·Q.· And, Chief Officer, this is an April

·8· ·30, 1981 letter from Roger Pigeau to James Keywan

·9· ·the architect.· So this is about five or six

10· ·months before you start.· But talking about

11· ·chasing down look what this letter says our

12· ·correspondence showed in March 25, '81 shows a

13· ·concern about fire separations.

14· · · · · · ·"To my knowledge, the remedial work has

15· · · · · · ·been completed by the maintenance

16· · · · · · ·staff...The Building Department is

17· · · · · · ·awaiting confirmation by the architecting,

18· · · · · · ·that the repairs conform to his design and

19· · · · · · ·the Ontario Building Code.· A reply would

20· · · · · · ·be appreciated..."

21· · · · · · ·Is this the kind of chasing down letter

22· ·that you would be writing to say, Look, we

23· ·understand it's done.· We want to close our file.

24· ·Can you just give us the information?

25· · · · · · ·A.· Yeah, that's exactly what that is.

·1· · · · · · ·Q.· Thank you so much.· So I take it,

·2· ·sir, that when you arrived in September to your

·3· ·knowledge the file had been closed?

·4· · · · · · ·A.· Yes.

·5· · · · · · ·Q.· And with that I take it that there

·6· ·are certain orders that can be made under the

·7· ·Building Code Act that require an active file to

·8· ·be open in order to make such an order.· Do you

·9· ·agree with that that there were certain orders

10· ·that can only be made if there is an active file?

11· · · · · · ·A.· It's been a while.· You're probably

12· ·going to have to refresh me a little bit.

13· · · · · · ·Q.· Let me ask.· An order to comply?

14· · · · · · ·A.· Yes.

15· · · · · · ·Q.· Would that be only to comply while

16· ·there's permit work being undertaken?

17· · · · · · ·A.· Correct.

18· · · · · · ·Q.· An order to uncover or an order not

19· ·to cover, would those be only for an active permit

20· ·file?

21· · · · · · ·A.· That's correct?

22· · · · · · ·Q.· And then finally a stop work order.

23· · · · · · ·A.· Yes.

24· · · · · · ·Q.· All right.· There are three other

25· ·kind of orders I think.· An occupancy prohibition

·1· ·order, an unsafe building order and an emergency

·2· ·order that can be made any time after a building

·3· ·--

·4· · · · · · ·A.· Without a permit.

·5· · · · · · ·Q.· Right.

·6· · · · · · ·A.· Yes.

·7· · · · · · ·Q.· Okay.· Thank you, sir.· Sir, during

·8· ·your time wearing your CBO hat and your Building

·9· ·Inspector hat, did you rely on architectural and

10· ·engineering seals on plans?

11· · · · · · ·A.· Absolutely.

12· · · · · · ·Q.· Did you ever go behind a seal?

13· · · · · · ·A.· Sorry?· You mean chase the to seal?

14· · · · · · ·Q.· No, just double check.· And say,

15· ·Notwithstanding you've sealed this I'm now going

16· ·to do a thorough review of these plans to see if

17· ·they comply with Code?

18· · · · · · ·A.· Oh you still review the drawings.

19· ·And you work in conjunction with the architect and

20· ·engineer.· But I mean it's more to understand his

21· ·design and see where he's going with it.· That's

22· ·-- and then also you're -- you're not getting into

23· ·the structural design components of it.· Basically

24· ·what you're look at is floor plans and in the

25· ·architectural making sure there are proper exit

·1· ·point and all those items.

·2· · · · · · ·Q.· That's helpful.· And during your 22

·3· ·years as Inspector and then CBO did the City have

·4· ·any operational policy respecting the level of

·5· ·review that the building department would

·6· ·undertake when reviewing engineering and

·7· ·architectural plans that had been stamped?

·8· · · · · · ·A.· I can't recall if there was a

·9· ·policy.· I can give you an example of what I did

10· ·when -- the building across the road is the St.

11· ·Joe's Manor.· I believe I was Chief Building

12· ·Official at that time.· Because we don't do a lot

13· ·of large buildings and in that particular

14· ·situation I was not comfortable doing the plan

15· ·review and I actually contracted -- went to

16· ·Council and contracted that out to a Building

17· ·Official that that's all he did was part 3 design

18· ·plan review for 30 years.· And that was done by

19· ·that individual.

20· · · · · · ·So what it did is it gave me a strong

21· ·base and -- to show that the drawings do comply,

22· ·and then you work from the drawings and proceed

23· ·forward.· And actually if I recall I think I had

24· ·that individual come in for assistance on final

25· ·collection and doing the final just to make sure

·1· ·we were right.

·2· · · · · · ·Q.· Thank you.· In your 22 years as

·3· ·Inspector and Chief Building Official did you ever

·4· ·issue any Building Code Act order respecting any

·5· ·activity at the mall or construction at the mall?

·6· · · · · · ·A.· An order?· I might have on that

·7· ·satellite dish, but that would have probably -- I

·8· ·can't remember if the satellite by-law was a part

·9· ·of the Building By-Law or -- I don't remember

10· ·which regulation I used.

11· · · · · · ·Q.· My question was specific.· Any order

12· ·under the Building Code Act respecting any

13· ·activity or construction at the mall?

14· · · · · · ·A.· I don't believe so.

15· · · · · · ·Q.· Okay, thank you.· Volume of building

16· ·permits.· Was there any record kept on an annual

17· ·basis of the number and value of permits that were

18· ·issued by the municipality?

19· · · · · · ·A.· Yes, there was.· We had to collect

20· ·that for the tax MPAC I believe it is.

21· · · · · · ·Q.· And during your time what were the

22· ·busy years and what were the slow years, if you

23· ·can recall?· Were there ups and downs or was it

24· ·generally consistent?

25· · · · · · ·A.· No, it was -- there was ups and

·1· ·downs.· I was not here yet but there was two

·2· ·subdivision I believe built in '77, '78, '79.

·3· ·When I came the Portage Lake and Nordic

·4· ·subdivision were being built.· Those are the first

·5· ·two subdivisions when you first come in to town.

·6· ·I believe there was about 800 houses, 750 houses

·7· ·or units, because there's townhouses mixed in

·8· ·there, that were issued in 1981.· And about the

·9· ·same amount in the second phase in the Nordic

10· ·subdivision was another 750 units in the one year.

11· ·One of those years we had the highest construction

12· ·value in the Province I believe.

13· · · · · · ·Q.· And is that data that is maintained

14· ·or kept by the municipality?

15· · · · · · ·A.· I would think it would be there

16· ·someplace because there would be records of

17· ·reports and also tax rolls, I believe it's

18· ·reported to those folks.

19· · · · · · ·Q.· Perhaps I'll save that for Mr.

20· ·Allard the questions about the history of building

21· ·permits --

22· · · · · · ·A.· Okay.

23· · · · · · ·Q.· -- in the municipality.· While you

24· ·were there I take it most of the buildings you

25· ·dealt with were part 9 buildings?

·1· · · · · · ·A.· That's correct.

·2· · · · · · ·Q.· And for those in the room that don't

·3· ·know a part 9 is what?

·4· · · · · · ·A.· I'll go through it for you, Mr.

·5· ·Commissioner.· The Building Code is broken down,

·6· ·part 9 buildings deal with I believe 600-meter

·7· ·squared, up to 600 meters squared.· And larger

·8· ·buildings which fall under part 3 are something a

·9· ·building of this size, or the mall, or the

10· ·hospital.· Those are buildings that are over

11· ·600-meters squared.· There are other stipulations

12· ·in there.· So many storeys, over so many square

13· ·feet it will flip it from one part to another.

14· ·Part 9 is essentially dealing with -- all the

15· ·housing comes under that.· Small public buildings,

16· ·garages, smaller buildings.

17· · · · · · ·THE COMMISSIONER:· And a square is what?

18· ·About 7,000 square feet?

19· · · · · · ·THE WITNESS:· About 8,0000 I think.

20· · · · · · ·THE COMMISSIONER:· I'm not good with

21· ·meters.

22· · · · · · ·MR. LONGO:· I'd say about 6,500 would

23· ·with be the size.

24· · · · · · ·THE COMMISSIONER:· Thank you.

25

·1· · · · · · ·BY MR. LONGO:

·2· · · · · · ·Q.· Is it fair to say that back in the

·3· ·early '80s most of the activity that you were

·4· ·just speaking to was housing?

·5· · · · · · ·A.· Yes, it was.

·6· · · · · · ·Q.· And that a commercial mall of a

·7· ·quarter million square feet would be something out

·8· ·of the ordinary?

·9· · · · · · ·A.· Absolutely.

10· · · · · · ·Q.· Thank you.· You're aware of the

11· ·provisioins in the Building Code about unsafe

12· ·buildings?

13· · · · · · ·A.· Yes.

14· · · · · · ·Q.· In your 22 years as Inspector and

15· ·then Chief Building Official did you ever enter a

16· ·property anywhere in Elliot Lake and conduct an

17· ·inspection to determine whether the building was

18· ·unsafe?

19· · · · · · ·A.· I can remember doing -- actually I

20· ·did one in -- with an Inspector in the City of

21· ·Guelph, I can remember that one.· But here I can

22· ·remember doing -- I don't remember the name of it

23· ·but it was a three-storey apartment buildings on

24· ·Mississauga and Dieppe on the corner of Dunn Road.

25· ·And I think I was in attendance with Mr. Pigeau

·1· ·and I believe he put the order on that building.

·2· · · · · · ·Over the years there were a few that

·3· ·were done, exactly where -- usually what ends up

·4· ·happening is that the building gets torn down and

·5· ·it's out of your memory.· But if I had to put a

·6· ·guess at it probably be at least half a dozen,

·7· ·maybe that could be up or down.

·8· · · · · · ·Q.· So during your 22 years did you have

·9· ·any reason to consider the mall to be an unsafe

10· ·building?

11· · · · · · ·A.· No.· No.· We -- if we did we would

12· ·have done something about it.· We even had our

13· ·Christmas party in the mall.· The management

14· ·Christmas party in the mall January of just before

15· ·-- or sorry, December.· And I don't think I'd be

16· ·allowing my family the go in there that's for

17· ·sure.· We would have acted on it.

18· · · · · · ·Q.· And I take it, sir, you never saw,

19· ·prior to this -- these proceedings, any of the

20· ·engineering consultant reports that were

21· ·commissioned by either Algoma Central Properties

22· ·or NorDev?

23· · · · · · ·A.· No, I didn't.

24· · · · · · ·Q.· All right.· Were you personally

25· ·aware of the 1991 and 1994 letters from the

·1· ·library respecting leaking?

·2· · · · · · ·A.· No.

·3· · · · · · ·Q.· Property Standards questions.· Were

·4· ·you appointed to enforce the Property Standards

·5· ·By-Law?

·6· · · · · · ·A.· I did.· I can't remember if I had

·7· ·the appointment or not.· I can remember getting

·8· ·into a discussion with our Clerk on that very

·9· ·item.· I don't know if it was the by-law or the

10· ·Property Standards.· Obviously taking various

11· ·courses you learn that these things needed to be

12· ·done so I had that discussion.· And there was a

13· ·blank statement in there that if the duties are

14· ·passed -- or delegated,· that's the word I'm

15· ·looking for.· And he said, No, we're not doing

16· ·that until it's challenged.· So I don't think I

17· ·was specifically named but I did enforce it.

18· · · · · · ·Q.· And when did Property Standards

19· ·become something that you were involved in?· Was

20· ·it right from the start in 1981?

21· · · · · · ·A.· It was right from the start, yeah.

22· · · · · · ·Q.· The reason I ask is because I asked

23· ·Mr. Pigeau about Property Standards and how many

24· ·officers there were in the 20 years he was Chief

25· ·Building Official, and his answer was one, me.· I

·1· ·take it, sir, you would qualify that and say that,

·2· ·no, you thought you were doing it too?

·3· · · · · · ·A.· Well I know I was doing it but he's

·4· ·probably referring to he was the one named in the

·5· ·by-law.· So you know -- so I would be doing some

·6· ·of the inspections.

·7· · · · · · ·Q.· And I take it then that -- were you

·8· ·a member of OAPSO?

·9· · · · · · ·A.· Yes, I was.

10· · · · · · ·Q.· Okay.· Other than the two library

11· ·letters that have been referred to extensively did

12· ·you or the Building Department ever receive

13· ·property standard complaints from the mall tenants

14· ·to your recollection?

15· · · · · · ·A.· No, even reviewing the file there

16· ·was nothing in the file.

17· · · · · · ·Q.· Mall employees?

18· · · · · · ·A.· No.· Again nothing in the file.

19· · · · · · ·Q.· And finally mall patrons?

20· · · · · · ·A.· No, nothing if the file.

21· · · · · · ·Q.· Did you ever issue a Property

22· ·Standards order respecting either the mall or any

23· ·tenant in the mall during your 22 years as

24· ·Inspector or Chief Building Official?

25· · · · · · ·A.· No, I did not.

·1· · · · · · ·Q.· Just to get some sense --

·2· · · · · · ·THE COMMISSIONER:· Are you

·3· ·distinguishing between the mall and the hotel

·4· ·here?

·5· · · · · · ·THE WITNESS:· Either.

·6· · · · · · ·THE COMMISSIONER:· Either one?

·7· · · · · · ·THE WITNESS:· Either one.

·8· · · · · · ·THE COMMISSIONER:· Thank you.

·9· · · · · · ·BY MR. LONGO:

10· · · · · · ·Q.· Generally speaking how many Property

11· ·Standards complaints would actually come in in a

12· ·year?

13· · · · · · ·A.· I'm going to have to take a guess

14· ·here, but 500 wouldn't surprise me.

15· · · · · · ·Q.· Sorry?

16· · · · · · ·A.· 500.

17· · · · · · ·Q.· 500?

18· · · · · · ·A.· Oh yeah.

19· · · · · · ·Q.· And were those mostly residential

20· ·related?

21· · · · · · ·A.· Yes, they were.

22· · · · · · ·Q.· With respect to nonresidential,

23· ·would the number be much lower?

24· · · · · · ·A.· Oh yes.· Getting into

25· ·nonresidential, you would get to commercial which

·1· ·would be very little.· And then the next highest

·2· ·would be probably industrial.· Back in the day we

·3· ·had quite a bit of complaints out in our

·4· ·industrial area.

·5· · · · · · ·It was -- when I first moved here it was

·6· ·a bit of an eye-opener actually.· So it was -- I

·7· ·can tell you the experience.· It was individuals

·8· ·actually working on a car on the side of the road.

·9· ·And their legs out into the actual driving space

10· ·because their yard was so full that -- and we

11· ·actually did chase them under the salvage and yard

12· ·by-law so we had some problems there.

13· · · · · · ·Q.· How many complaints would actually

14· ·result in orders being issued as opposed to just

15· ·the warning?· Would most of them have been cleared

16· ·up?

17· · · · · · ·A.· Yeah, most of them would be cleared

18· ·up.

19· · · · · · ·Q.· And would you say there was just a

20· ·handful of orders every year or would there be

21· ·more than?

22· · · · · · ·A.· It would be less than six.

23· · · · · · ·Q.· And then how many would actually go

24· ·to the Property Standards Committee --

25· · · · · · ·A.· Very few.

·1· · · · · · ·Q.· -- and be appealed?

·2· · · · · · ·A.· Very few, yeah.

·3· · · · · · ·Q.· Is it fair to say then that in

·4· ·instances dealing with Property Standards you were

·5· ·able to obtain results through the initial

·6· ·process, that you never really got to the formal

·7· ·orders and then to the appeal period and appeals

·8· ·after that?

·9· · · · · · ·A.· That's correct.

10· · · · · · ·Q.· Okay, thank you.· Going to be asking

11· ·a couple of questions about two distinct issues.

12· ·My colleagues here are probably bored with he

13· ·asking these but I'll keep asking.· Think of the

14· ·leaking roof as one issue of the mall, and think

15· ·of vehicle traffic and parking on the roof.· Those

16· ·two issues.

17· · · · · · ·Did any municipal department head ever

18· ·discuss with you issue one or two?· As Building

19· ·Inspector or Chief Building Official, I'm not

20· ·asking about the -- your role as Fire Chief.

21· · · · · · ·A.· No.

22· · · · · · ·Q.· Did any municipal employee ever

23· ·raise with you in those 22 years issue one or two?

24· · · · · · ·A.· No.

25· · · · · · ·Q.· Council member?

·1· · · · · · ·A.· No.

·2· · · · · · ·Q.· Mayor?

·3· · · · · · ·A.· No.

·4· · · · · · ·Q.· Member of the public?

·5· · · · · · ·A.· No.

·6· · · · · · ·Q.· So in the 22 years you were

·7· ·Inspector and CBO were either issues one or two

·8· ·ever the subject of a staff report before Council,

·9· ·in your recollection?

10· · · · · · ·A.· No.

11· · · · · · ·Q.· Do you recall any public deputations

12· ·in those 22 years before Council respecting either

13· ·issue one or two?

14· · · · · · ·A.· No, I don't.

15· · · · · · ·Q.· Thank you.· Did you yourself ever

16· ·personally raise with Council, or any department

17· ·head, issues one or two at the mall in those 22

18· ·years?

19· · · · · · ·A.· No.

20· · · · · · ·Q.· Thank you.· Sir, I'm going to ask

21· ·some questions about Chief Building Official

22· ·independence.· In your 22 years as inspector and

23· ·then as a CBO did the Mayor, elected Councillors

24· ·or senior City officials ever direct you or

25· ·suggest to you how you should do your job?

·1· · · · · · ·A.· No.· If there was anything it was

·2· ·usually people complaining about us doing our job

·3· ·because they didn't like to be told what to do.

·4· ·And more so in reference to Property Standards

·5· ·because they would be furious that we'd be telling

·6· ·them to clean up the yard or whatever, and of

·7· ·course they would call up and complain.

·8· · · · · · ·Q.· So they would get a complaint from

·9· ·their rate-payer constituents and they'd come to

10· ·you and say, Why are you giving John such a hard

11· ·time or something?

12· · · · · · ·A.· And we'd have to go and explain to

13· ·them why, and that we're just doing our job and

14· ·this is what's actually happening.

15· · · · · · ·Q.· With respect to the Building Code

16· ·matter and issues of building permits and any

17· ·orders you might be issuing under the Building

18· ·Code Act, were you ever -- did Councillors ever

19· ·come to you and suggest that maybe you ought not

20· ·to do something, or do something?

21· · · · · · ·A.· No.· The only thing usually there

22· ·would people bring drawings in say on Thursday

23· ·night and they're calling at 10:00 the next

24· ·morning saying, They've had the information for a

25· ·long time and how come I don't have my building

·1· ·permit.· Those type of thing.

·2· · · · · · ·Q.· Code complexity issues.· From my

·3· ·calculation during your career from 1981 to 2002

·4· ·there have been five building -- Provincial

·5· ·Building Codes, is that correct?

·6· · · · · · ·A.· Yes, that's correct.

·7· · · · · · ·Q.· Do each -- do you agree with me that

·8· ·each new revision adds new elements and increasing

·9· ·complexity?

10· · · · · · ·A.· Absolutely.

11· · · · · · ·Q.· Do you have any views as to what

12· ·kind of ongoing training and education are

13· ·essential for a building official to maintain

14· ·their knowledge and understanding of the Code?

15· · · · · · ·A.· When those reviews take place, or

16· ·when the new Codes come out there should be some

17· ·fairly extensive training that takes place every

18· ·time there is a cycle on a new Code.· That should

19· ·be mandatory.· And why I say that is, although in

20· ·my case here the Council was very good with

21· ·training, but there were times when things get

22· ·tight and those are usually the things that get

23· ·cut.· And you have to be able to get away and do

24· ·that training.· And part of that is your workload,

25· ·because if you've got too much workload they're

·1· ·not going to let you go.· So that's another issue.

·2· · · · · · ·Q.· It's a vicious cycle if you're

·3· ·really busy work on things you're robbed of being

·4· ·able to learn the new Code that you should be

·5· ·applying to that very work?

·6· · · · · · ·A.· That's correct.

·7· · · · · · ·Q.· Qualification questions.· What

·8· ·qualifications did you need to possess back in

·9· ·1981 to get hired as a Building Inspector?

10· · · · · · ·A.· I had the Construction Supervision

11· ·so I had the educational background.· And then I

12· ·was also, like I said, working for the City of

13· ·Guelph prior to that.· With the Portage

14· ·subdivision that was strictly part 9 buildings,

15· ·and that was the bulk of my work when I moved up

16· ·here and why I got that job.· I was dealing with

17· ·the houses.

18· · · · · · ·From that point through my career they

19· ·were very good at recognizing, and it was part of

20· ·my continuing growth to, back at that time it was

21· ·take the BOA courses at Spencer Hall in London

22· ·actually.· And they were quite good and extensive

23· ·courses.

24· · · · · · ·Q.· And, sir, I'd ask you to now think

25· ·of today's date.· I know you're ten, eleven years

·1· ·removed from your CBO responsibilities.· But do

·2· ·you have any views as to what kind of

·3· ·qualifications a building official should possess

·4· ·today when starting a career as a building

·5· ·official?

·6· · · · · · ·A.· They'd have their hands full I can

·7· ·tell you that much.· Yeah, there probably should

·8· ·be a -- definitely have to have some training.· I

·9· ·believe now, and you might have to correct me

10· ·here, but they have to write their exams now prior

11· ·to getting their -- I think it's a BIN number.

12· · · · · · ·Q.· I understand.· I think there is a

13· ·three-hour ministry exam that you have to take

14· ·with the Province in order to be able to practice

15· ·as a Building Inspector?

16· · · · · · ·A.· Yeah.· When that whole certification

17· ·process started it was at the end of my career

18· ·there.· It started with moving forward the whole

19· ·industry to come at an approach more in

20· ·partnership.· The certification requirements were

21· ·going to be for the engineers, the architects, the

22· ·contractors and the building officials.

23· · · · · · ·The architects complained and said, No,

24· ·no, we have our professional designation.· We're

25· ·not going to do that.· The engineers were

·1· ·successful in doing the same thing.· The

·2· ·contractors said, We have no time.· They dropped

·3· ·them off.· And the only ones that left was the

·4· ·Building Inspectors that had to have the

·5· ·certification.

·6· · · · · · ·THE COMMISSIONER:· Were the older ones

·7· ·grandfathered?

·8· · · · · · ·THE WITNESS:· No they were not

·9· ·grandfathered.· And one of the main driving forces

10· ·back then, which was really frustrating,

11· ·especially many you get into the smaller

12· ·municipality, a large part of this again was

13· ·driven by the Province getting complaints from GTA

14· ·because it was taking up to a year to get a

15· ·building permit for a house in Toronto.· So it was

16· ·almost to the appearance of this isn't about

17· ·safety, this is about speed and efficiency, even

18· ·though they were toting it about safety.

19· · · · · · ·Because when you do a two hour the exam

20· ·and you have a minute and 38 seconds to produce

21· ·that answer that's about speed and efficiency.

22· ·You have to know that Code inside and out to be

23· ·able to do that.· And some of those questions and

24· ·tests they're designed to actually trip you up.

25· ·And it was very difficult.· I feel for those guys.

·1· · · · · · ·BY MR. LONGO:

·2· · · · · · ·Q.· Let me ask you about certification.

·3· ·You've been a member of the Ontario Building

·4· ·Officials Association since 1982?

·5· · · · · · ·A.· Yes.

·6· · · · · · ·Q.· And you continue to be a member

·7· ·today?

·8· · · · · · ·A.· Yes, I am.

·9· · · · · · ·Q.· And I understand from the records

10· ·that you were certified as a CBCO, Certified

11· ·Building Code Official on July 23, 1990?

12· · · · · · ·A.· That's correct.

13· · · · · · ·Q.· And why do you seek that

14· ·certification and what does that certification

15· ·mean to you?

16· · · · · · ·A.· Well it was a certification moved

17· ·forward by the Ontario Association of Building

18· ·Officials to move in the direction of

19· ·self-regulation.· And it was a certification to

20· ·obtain to get a more professional status.· And it

21· ·was a minimum -- I guess a minimum acceptable

22· ·level that you tried to achieve.

23· · · · · · ·Q.· And did that at that time require

24· ·both a level of experience as well as a level of

25· ·taking courses?

·1· · · · · · ·A.· Yes, it was.

·2· · · · · · ·Q.· And, sir, do you have any views as

·3· ·to what kind of professional certification a

·4· ·building official should be required to possess

·5· ·today in order to engage in the profession?

·6· · · · · · ·A.· You would have to have probably a

·7· ·certain amount of mentoring.· It's such a broad

·8· ·field, and you'd have to have such a broad

·9· ·knowledge.· And why I say that is because you can

10· ·take a building inspector say in Mississauga, all

11· ·he might do is heating and ventilation.· So his

12· ·knowledge on that particular topic is he's going

13· ·to be an expert.

14· · · · · · ·Then you'll take say a building

15· ·inspector in another large city he might just do

16· ·part 9, another guy does part 3, another guy all

17· ·he might do is just the plan review for any one of

18· ·those items.

19· · · · · · ·When you get into a smaller

20· ·municipality, when I say that less than a hundred

21· ·thousand, you have to know it all the same as they

22· ·do, but you don't become an expert on it.· And it

23· ·makes it very difficult and very onerous on those

24· ·individuals.

25· · · · · · ·Q.· All right, thank you.· Sir, while --

·1· ·you have been a member since 1982, have you

·2· ·attended the OBOA annual meeting and training

·3· ·sessions?

·4· · · · · · ·A.· Since 1982?

·5· · · · · · ·Q.· Yes.

·6· · · · · · ·A.· Yes.

·7· · · · · · ·Q.· And how did you find them in

·8· ·assisting you to maintain your knowledge base?

·9· · · · · · ·A.· The networking is very good.· We

10· ·also -- I believe Mr. Pigeau was the first Chapter

11· ·Chair for our local Chapter here.· He started it

12· ·back in 1982 I believe.

13· · · · · · ·The networking is very important.· You

14· ·get to know the other individuals and who is very

15· ·strong in certain areas.· And it would not be --

16· ·it would be practiced that if you were having an

17· ·issue and you wanted a second opinion you would

18· ·contact that individual and help each other out.

19· · · · · · ·Q.· Thank you.

20· · · · · · ·MR. LONGO:· Ms. Kuka, if you could turn

21· ·Exhibit No. 937 up please.

22· · · · · · ·BY MR. LONGO:

23· · · · · · ·Q.· Chief, this is a report that you

24· ·authored back in 2001 I believe.· Tab 2 of your

25· ·document book, Chief.· But I think it's Exhibit

·1· ·No. 937.· There we go.

·2· · · · · · ·Sir, this is report CB 01-05.· If you go

·3· ·to the bottom of the page, sir, you will see it

·4· ·was authored by yourself?

·5· · · · · · ·A.· Yes.

·6· · · · · · ·Q.· And what was the reason for

·7· ·initiating this report?· And if we go back down to

·8· ·the top of the page it's entitled "Risk Management

·9· ·Administration Report."· And it says that the

10· ·objective is to "Obtain approval from Council to

11· ·implement a Risk Management Report prepared by the

12· ·Chief Building Official.· What was the reason for

13· ·initiating this, sir?

14· · · · · · ·A.· Yeah, when I seen this in here I

15· ·really had to scratch my head because I had zero

16· ·recollection of this.· I had to read through it.

17· ·I believe that at that time it was in conjunction

18· ·with the changes that were coming through for the

19· ·building -- the new Building Code, and moving

20· ·towards the certification aspect, and trying to

21· ·manage the department.

22· · · · · · ·I did check, and probably part of the

23· ·reason why I didn't have as much memory on this as

24· ·I probably should, this report never did go to

25· ·Council.· This is right in my changeover period

·1· ·when I ended up going over to the Fire Department.

·2· · · · · · ·I do not know if it was used by Mr.

·3· ·Allard as a base to continue where I left off.· I

·4· ·was gone just before that.

·5· · · · · · ·Q.· Which probably explains to me why

·6· ·the report isn't signed.· It was a draft only?

·7· · · · · · ·A.· Yes, I believe -- I read it and I

·8· ·thought, gee, I was smart at one time.

·9· · · · · · ·Q.· If I could -- I appreciate that and

10· ·I will ask Mr. Allard those questions.

11· · · · · · ·If we could go to page 10 though.· There

12· ·was one recommendation and I'm wondering if you

13· ·might shed some light on it.· One of the

14· ·recommendations was at page 10, it called for a

15· ·revised Building By-Law to be enacted.· Do you

16· ·know was one --

17· · · · · · ·A.· I was it was.

18· · · · · · ·Q.· -- passed?

19· · · · · · ·A.· I believe Mr. Allard did a new

20· ·by-law I believe the year after so that's why I'm

21· ·not sure.· I think he might have picked up on this

22· ·and continued it forward.· I'm just not sure to

23· ·what level.

24· · · · · · ·Q.· All right.· And then finally, sir,

25· ·you did admit yesterday you were a Canadian Tire

·1· ·kind of guy, but I take it you were in the mall on

·2· ·occasion from 1991 through to 2002, when you were

·3· ·wearing your Building Inspector or Chief

·4· ·Building --

·5· · · · · · ·A.· Yeah, it would have been probably

·6· ·for work.

·7· · · · · · ·Q.· Do you recall the mall ever being

·8· ·more than 50% vacant during any period of time

·9· ·that you visited it during those years?

10· · · · · · ·A.· What was years again?

11· · · · · · ·Q.· 1981 to 2002?

12· · · · · · ·A.· No, I don't believe so.

13· · · · · · ·Q.· Thank you.

14· · · · · · ·MR. LONGO:· Mr. Commissioner, those are

15· ·my questions.

16· · · · · · ·THE COMMISSIONER:· Thank you.· Next who

17· ·is up?

18· · · · · · ·MR. MACRAE:· I wonder if I might go, Mr.

19· ·Commissioner.

20· · · · · · ·THE COMMISSIONER:· Mr. MacRae

21· · · · · · ·CROSS-EXAMINATION BY MR. MACRAE:

22· · · · · · ·Q.· Morning, Chief Officer.· We've known

23· ·each other for 30 years, but formally I'm Rob

24· ·MacRae and represent Mr. Bob Wood at this

25· ·hearing.

·1· · · · · · ·I have some questions with respect to

·2· ·your testimony yesterday that I'd like to clear up

·3· ·if I can start there.

·4· · · · · · ·MR. MACRAE:· Prior to that though, Mr.

·5· ·Commissioner, I have -- I would like to make some

·6· ·comments to the Commission with respect to my

·7· ·client.· However I don't intend to do that at this

·8· ·time, but I just raise that issue and ask that I

·9· ·be allowed to address the Commission following Mr.

10· ·Officer's testimony.· I don't want to interrupt

11· ·his testimony at this time.

12· · · · · · ·THE COMMISSIONER:· That's fine.

13· · · · · · ·BY MR. MACRAE:

14· · · · · · ·Q.· I reviewed the transcript from your

15· ·testimony yesterday and I just wanted to make

16· ·clear.· You seem to be indicating that you felt

17· ·that there had been a purposeful delay from 2006

18· ·to 2009 with respect to working with the City of

19· ·Elliot Lake by the Eastwood Mall, rather the

20· ·Nazarian people?

21· · · · · · ·A.· Hmm hmm.

22· · · · · · ·Q.· You recall giving that evidence

23· ·about that delay?

24· · · · · · ·A.· Yeah, that's what I said.· In

25· ·hindsight it became apparent that, or it seems

·1· ·that he was trying to delay.

·2· · · · · · ·Q.· I just wanted to make clear you

·3· ·weren't in any way suggesting that Mr. Wood played

·4· ·any role in that delay?

·5· · · · · · ·A.· No, I was not.

·6· · · · · · ·Q.· And in fact my understanding is that

·7· ·you considered Mr. Wood's assistance in dealing

·8· ·with the fire issues very helpful?

·9· · · · · · ·A.· Yes, it was.· And I believe he ran

10· ·into similar problems with getting payment and

11· ·that's what was stalling some of the more delays

12· ·there.

13· · · · · · ·Q.· All right.· But in dealing with Mr.

14· ·Wood though I understand that he co-operated

15· ·completely with you?

16· · · · · · ·A.· Yes, yes he did.

17· · · · · · ·Q.· And in fact his reports that he

18· ·provided to you, he in fact provided you a draft

19· ·of the report before it went out in final form?

20· · · · · · ·A.· That's correct.

21· · · · · · ·Q.· And you reviewed that yesterday?

22· · · · · · ·A.· Yes.

23· · · · · · ·MR. MACRAE:· I wonder, Ms. Kuka, if you

24· ·might pull up Exhibit No. 102.

25

·1· · · · · · ·BY MR. MACRAE:

·2· · · · · · ·Q.· Chief Officer, this is the report of

·3· ·-- that I was referencing.· And I wanted to run

·4· ·through the draft report at page 11 of that

·5· ·document once we get there.

·6· · · · · · ·And this is my understanding if you

·7· ·could confirm that, that this is the draft report

·8· ·that you were provided prior to it being

·9· ·finalized.· And Mr. Wood provided your office with

10· ·that draft report?

11· · · · · · ·A.· Yes.

12· · · · · · ·MR. MACRAE:· And you had an opportunity

13· ·to review that report.· If you could just bring up

14· ·the bottom of the page, please, Ms. Kuka.

15· · · · · · ·BY MR. MACRAE:

16· · · · · · ·Q.· And Mr. Wood in his report made

17· ·clear in the last paragraph, the last sentence.

18· ·"The review of the building consisted of visual

19· ·inspection in areas of significant leakage within

20· ·the Mall below the parking deck."· And you, Chief

21· ·Officer, had concerns at that point in time with

22· ·respect to the fireproofing in those areas, am I

23· ·correct?

24· · · · · · ·A.· What's the date of this?

25· · · · · · ·Q.· October the 28th, 2009.

·1· · · · · · ·A.· Yes.

·2· · · · · · ·Q.· And Mr. Wood explained what was

·3· ·occurring.· If I go to the next page, please.

·4· ·Again at the bottom of the page beginning with

·5· ·paragraph 3.· In that paragraph, the second

·6· ·paragraph under sub 3 it states.

·7· · · · · · · · "Similar to other areas inspected much

·8· · · · · · ·of the exposed steel has only minor

·9· · · · · · ·surface rusting with exposed original

10· · · · · · ·primer paint, where the fireproofing has

11· · · · · · ·fallen off due to water saturation."

12· · · · · · ·And Mr. Wood was making the point that

13· ·there had been again the water infiltration or the

14· ·water saturation of the insulation.· Is that what

15· ·you understood?

16· · · · · · ·A.· Yes, this is basically he's trying

17· ·to describe what the steel looked like.

18· · · · · · ·Q.· Okay.

19· · · · · · ·MR. MACRAE:· And then if we might go to

20· ·the last page please, Ms. Kuka.· Paragraph -- or

21· ·section 4.

22· · · · · · ·BY MR. MACRAE:

23· · · · · · ·Q.· The second paragraph Mr. Wood

24· ·clearly informed the readers that.

25· · · · · · · · · "Based upon the above it is our

·1· · · · · · ·opinion that our inspection revealed no

·2· · · · · · ·visual structural concerns both with the

·3· · · · · · ·structural steel or prestressed slabs."

·4· · · · · · ·And you recall receiving that report?

·5· ·Did you receive the final copy of -- or rather a

·6· ·copy of the final report, Mr. Officer?

·7· · · · · · ·A.· I believe we have -- I think we do

·8· ·have something on record, I'd have to look to be

·9· ·honest with you, but we should have.· I was

10· ·satisfied -- you're talking about the hotel

11· ·retrofit portion?

12· · · · · · ·Q.· Yes.

13· · · · · · ·A.· Yes we did, I believe

14· · · · · · ·Q.· And I'm talking about the entire

15· ·three pages of the report.· That was provided to

16· ·you by Mr. Wood and you had an opportunity to

17· ·review it at that time?· You had mentioned, and my

18· ·friend was kind enough to point out, you mentioned

19· ·the retrofit review report.· I'm talking about

20· ·this report.

21· · · · · · ·A.· Yes.

22· · · · · · ·Q.· Are you referencing this as the

23· ·retrofit report or are you referencing another

24· ·report?

25· · · · · · ·A.· Yeah, sorry.· I was looking at where

·1· ·it said hotel so I thought it was part of the

·2· ·hotel report.· So this is with regards to the

·3· ·fireproofing then.

·4· · · · · · ·Q.· Yes.

·5· · · · · · ·A.· Yes.

·6· · · · · · ·Q.· All right, thank you.· And you

·7· ·recall seeing that report?

·8· · · · · · ·A.· Yes.· And I believe your next

·9· ·question was did we get a final when it was all

10· ·complete?

11· · · · · · ·Q.· Yes.

12· · · · · · ·A.· Yes, we did.

13· · · · · · ·Q.· Thank you very much.

14· · · · · · ·MR. MACRAE:· And then, Ms. Kuka, if you

15· ·would pull up Exhibit No. 1446.

16· · · · · · ·BY MR. MACRAE:

17· · · · · · ·Q.· And, Mr. Officer, this is an e-mail

18· ·that you reviewed yesterday.· It's dated October

19· ·28th of 2009.· Now if you would go to the bottom,

20· ·thank you.· This is an e-mail that you referenced

21· ·yesterday or answered some questions about with

22· ·respect to Mr. Dimitri who had attended at your

23· ·office.

24· · · · · · ·THE COMMISSIONER:· Mr. Yakimov.

25· · · · · · ·MR. MACRAE:· Yes, I'm quoting· from the

·1· ·second paragraph but it is Mr. Yakimov.

·2· · · · · · ·BY MR. MACRAE:

·3· · · · · · ·Q.· And what's contained in there is

·4· ·some hearsay, but I have a question specifically.

·5· ·In your evidence yesterday you indicated that you

·6· ·called Mr. Wood and spoke with Mr. Wood about his

·7· ·report.· Do you recall giving that evidence

·8· ·yesterday?

·9· · · · · · ·A.· I recall, yes.

10· · · · · · ·Q.· And do you recall the conversation

11· ·that you had with Mr. Wood?

12· · · · · · ·A.· I believe it was in reference to Mr.

13· ·Dimitri's comments.

14· · · · · · ·Q.· But when you say you believe that,

15· ·I'd ask you if you can turn to the second page.

16· ·And you indicate in the first full paragraph.· "I

17· ·called Bob Wood (of H.R. Wright) at 11:30 October

18· ·28, 2009 and discussed his report.· He is hoping

19· ·to have it out by the end of the week."· And so is

20· ·it not fair to say that the topic of conversation

21· ·that you had with Mr. Wood was about his report

22· ·not about what Mr. Yakimov had said?

23· · · · · · ·A.· It was about both.

24· · · · · · ·Q.· And you recall that clearly?

25· · · · · · ·A.· Yes.· Because I would not just pick

·1· ·up a phone and call Mr. Wood.· If you look at the

·2· ·time and the dates this is right after speaking to

·3· ·Mr. Dimitri.

·4· · · · · · ·Q.· Right.· But you were speaking with

·5· ·him about the possibility of a delay.· And I -- my

·6· ·suggestion to you, Mr. Officer, is that the only

·7· ·topic of conversation that you had with Mr. Wood

·8· ·that day was with respect to the availability of

·9· ·his report.· And that in fact you're mistaken when

10· ·you suggest that you passed on information that

11· ·you received from Mr. Yakimov.

12· · · · · · ·A.· I don't believe so because it's too

13· ·much of a coincidence that he leaves and I pick up

14· ·the phone and call Mr. Wood right behind.· The end

15· ·result of this is that the report was coming and

16· ·this is what was the end of result of that

17· ·conversation.· I would have passed on those

18· ·concerns.

19· · · · · · ·Q.· But it seems to me, Mr. Officer,

20· ·that you're trying to put something together with

21· ·respect to what occurred as compared to recalling

22· ·specifically that you did in fact pass on any of

23· ·the concerns that Mr. Yakimov had with respect to

24· ·the core slab?

25· · · · · · ·A.· I don't think so.· I mean this is

·1· ·right after he left -- and but I did call so I

·2· ·would have forward on those concerns.· I believe

·3· ·the conversation went along the lines of, No, it's

·4· ·not a concern and this is what the end result of

·5· ·that -- he felt was a concern.

·6· · · · · · ·Q.· Well I won't press it further, Mr.

·7· ·Officer, but it does appear to me, and I put it to

·8· ·you, that you're trying to recollect what

·9· ·happened.· But I'm suggesting that you don't have

10· ·a clear recollection of the conversation.

11· · · · · · ·A.· It's not stated in the document,

12· ·that's correct.· So it's an awful convenience that

13· ·I'm calling him right after that complaint and I'm

14· ·also forwarding this on to -- in the e-mail.

15· · · · · · ·Q.· But you would agree with me, Mr.

16· ·Officer, you were very concerned about when you

17· ·were going to be receiving the report?

18· · · · · · ·A.· Oh yes.

19· · · · · · ·Q.· And that would been a topic of

20· ·discussion that you had?

21· · · · · · ·A.· Yes, it was you're.· Correct.

22· · · · · · ·Q.· Following Mr. Wood's involvement at

23· ·this time did you have any further dealings with

24· ·Mr. Wood?

25· · · · · · ·A.· October 28th, without kind of going

·1· ·through the documents I can't recall.· If I had

·2· ·the timeline, if you have something I might be

·3· ·able to put together for you if we did.

·4· · · · · · ·Q.· How about if I -- if I put a

·5· ·question to you that --

·6· · · · · · ·A.· Yes, we did.· Sorry, with the hotel

·7· ·retrofit I think in 2010 he was down again.

·8· · · · · · ·Q.· So 2010?

·9· · · · · · ·A.· August I believe, it might have been

10· ·even in April if I'm getting the years correct.

11· · · · · · ·Q.· And you said yesterday, in response

12· ·the a question from Commission Counsel, that an

13· ·inspection of the premises -- rather of the

14· ·equipment simply says that it's an inspection.· It

15· ·doesn't say that the equipment is working

16· ·properly.· You agreed with that yesterday?

17· · · · · · ·A.· When· I said yesterday was when

18· ·we're doing the audit the audit is an inspection

19· ·to see if the appropriate equipment is there or

20· ·the physical aspects of the building are there.

21· ·Then we went on further to actually find out if

22· ·the equipment -- and when I say equipment in

23· ·particular the fire alarm and sprinkler system

24· ·were adequately working.

25· · · · · · ·Q.· And do you recall that Mr. Wood,

·1· ·during the course of conducting this work, went so

·2· ·far as to roll out the hoses to make sure they

·3· ·were working?

·4· · · · · · ·A.· Absolutely.

·5· · · · · · ·Q.· It was a very extensive piece of

·6· ·work?

·7· · · · · · ·A.· Yes.

·8· · · · · · ·Q.· And would you agree with me that you

·9· ·were very satisfied with the amount of work that

10· ·was done and the quality of work?

11· · · · · · ·A.· Yes.

12· · · · · · ·Q.· I have no further questions.· Thank

13· ·you very much, Mr. Officer.

14· · · · · · ·THE COMMISSIONER:· Mr. Elliott.

15· · · · · · ·CROSS-EXAMINATION BY MR. ELLIOTT:

16· · · · · · ·Q.· Good morning, Chief Officer.· We

17· ·also know each other very well, but for the record

18· ·my name is Douglas Elliot and I represent the

19· ·Elliot Lake Mall Action Comittee.

20· · · · · · ·I wanted to ask you just a few questions

21· ·in relation to your testimony.· You talked about

22· ·Frank Hollick on a number of occasions.· Mr.

23· ·Hollick, when he was issuing the occupancy permit

24· ·that you were alluding to, would you agree with me

25· ·that he was about 22 or 23 years old at the time?

·1· · · · · · ·A.· I think about 24, 25, you're close.

·2· ·He was a little older than I was.· About 3 or 4

·3· ·years.

·4· · · · · · ·Q.· Yes, he was in high school with me.

·5· · · · · · ·A.· Oh, okay.· I think you might be

·6· ·talking about his brother.

·7· · · · · · ·Q.· Yes.· Well I'll avoid getting into

·8· ·the discussion about Elliot Lake geography.· But

·9· ·Frank Hollick was a high school graduate from

10· ·Elliot Lake Secondary School, correct?

11· · · · · · ·A.· Yes.

12· · · · · · ·Q.· But he had no college training?

13· · · · · · ·A.· I don't know that.

14· · · · · · ·Q.· And he had no university training?

15· · · · · · ·A.· I don't know that.

16· · · · · · ·Q.· Okay.· And it's my information that

17· ·Frank Hollick held the title in 1979 of Junior

18· ·Building Inspector.· That there was a Senior

19· ·Building Inspector in the person of Grant

20· ·Ferguson, and that there was then the Chief

21· ·Building Official Mr. Gruhl, is that your

22· ·recollection?

23· · · · · · ·A.· Yes.

24· · · · · · ·Q.· All right.· Now, it's my

25· ·understanding that Mr. Hollick didn't have any

·1· ·formal training.· His father was a builder so he

·2· ·had been exposed to the building business but he

·3· ·didn't have any formal training as a building

·4· ·official, is that right?

·5· · · · · · ·A.· His father was a mason, I believe

·6· ·his uncle as well.

·7· · · · · · ·Q.· So apart from that exposure to the

·8· ·family business he didn't actually have any

·9· ·training with respect to the Building Code and so

10· ·on?

11· · · · · · ·A.· I don't know that part, sir.

12· · · · · · ·Q.· All right.· And it's my

13· ·understanding that prior to the mall that the

14· ·largest building site in Elliot Lake would have

15· ·been the Villa Française de Juenes, the French

16· ·language high school.· Do you recall that?

17· · · · · · ·A.· Yes.· I know where the school is and

18· ·the age would have been right around that time.

19· · · · · · ·Q.· All right.· And it's also my

20· ·information that Frank Hollick was assigned to be

21· ·the Building Inspector on that job.· Do you have

22· ·any knowledge about that?

23· · · · · · ·A.· No, I don't.

24· · · · · · ·Q.· All right.· It's information, and I

25· ·intend to call evidence on this point if

·1· ·necessary, that when Mr. Hollick inspected Villa

·2· ·Française de Juenes that he only conducted one

·3· ·site inspection from the beginning of the building

·4· ·to the end.· Is that an -- if that evidence is put

·5· ·forward would you agree that that would be an

·6· ·adequate number of inspections for a project of

·7· ·the size of the Villa Française de Juenes?

·8· · · · · · ·A.· No, it would not.

·9· · · · · · ·Q.· All right.· It's also my

10· ·understanding, and I intend to call evidence on

11· ·this point if required, that Mr. Hollick, when he

12· ·attended that site, which was then under the

13· ·supervision of Grant Ferguson who is the site

14· ·superintendent of ACME Construction before he

15· ·joined Building Department, that Frank Hollick was

16· ·unable to recognize a cantilevered beam.· He

17· ·didn't know what a cantilevered beam was.· Would

18· ·you agree with me, Chief Officer, that if you a

19· ·Building Inspector inspecting a building that

20· ·includes cantilevered beams that you ought to have

21· ·at least sufficient training that you recognize a

22· ·cantilevered beam, and understand how it's

23· ·expected to perform and to be built?

24· · · · · · ·A.· Yes.

25· · · · · · ·Q.· All right.· Chief Officer, you would

·1· ·agree that at the time, and today, the Ontario

·2· ·Building Code and the Elliot Lake Municipal

·3· ·By-Laws required that a building be -- have a

·4· ·watertight roof.· There was no requirement for a

·5· ·membrane or anything, but it did -- it was

·6· ·required to be watertight, correct?

·7· · · · · · ·A.· Yes.

·8· · · · · · ·Q.· And the occupancy permit that you

·9· ·alluded to would you agree with me that the

10· ·architect and engineer ought not to be issuing a

11· ·certificate of completion and requesting an

12· ·occupancy permit unless that roof is in compliance

13· ·with that municipal by-law and the Building Code

14· ·and be in a watertight condition?

15· · · · · · ·A.· That would be what the regulation

16· ·would require.

17· · · · · · ·Q.· Now my friend Mr. Longo said that

18· ·you would not ordinarily go behind the seal of the

19· ·architect or the engineer, but would you agree

20· ·with me that if you were presented with a

21· ·certificate of completion that bore those seals,

22· ·and yet it was obvious from your inspection that

23· ·the roof was not watertight, that you would in

24· ·fact go behind these seals and decline to issue

25· ·the occupancy permit?

·1· · · · · · ·A.· Yes.

·2· · · · · · ·Q.· All right.· Now it's my understand

·3· ·-- you said that Mr. Hollick did a good job of the

·4· ·inspections.· Let me just begin with this question

·5· ·to you.· Would you agree me that the Elliot Lake

·6· ·mall was at the time the largest and most complex

·7· ·project being built in Elliot Lake?

·8· · · · · · ·A.· Yes.

·9· · · · · · ·Q.· All right.· Now Mr. Gruhl had a

10· ·choice of assigning Mr. Hollick, who is the Junior

11· ·Building Inspector to inspect the mall, who had

12· ·only a high school education, or he had the choice

13· ·of assigning Mr. Ferguson, who the evidence will

14· ·show had a diploma in Engineering Technology, some

15· ·university education, and site superintendent

16· ·experience on the Villa Française de Juenes.· You

17· ·would agree with me therefore much more

18· ·experienced and qualified than Mr. Hollick,

19· ·correct?

20· · · · · · ·A.· Yes.

21· · · · · · ·Q.· All right.· Can you explain why Mr.

22· ·Gruhl would have assigned Mr. Hollick and not Mr.

23· ·Ferguson to be responsible for inspecting this

24· ·project?

25· · · · · · ·A.· No, I would have no idea.

·1· · · · · · ·Q.· If you had been the Chief Building

·2· ·Official would you have assigned Mr. Ferguson or

·3· ·Mr. Hollick?

·4· · · · · · ·A.· Mr. Ferguson.

·5· · · · · · ·Q.· All right.· What would you have

·6· ·considered an adequate number of inspections for

·7· ·the mall?· You indicated one inspection for Villa

·8· ·Française de Juenes was not enough, but for the

·9· ·mall site.· What would you have considered to be

10· ·an adequate number of inspections during the

11· ·course of the project?

12· · · · · · ·A.· A building of that size?· Well

13· ·you're going to do -- prior to their pourings

14· ·you're going to do the footing, foundation.

15· ·Probably again when they start pouring some of

16· ·those walls.· You're going to go again -- the

17· ·plumbing inspector would have been involved in the

18· ·underground rough-in prior to them putting the

19· ·plumbing in and the slabs before they're poured.

20· ·Structural steel, you would be going when they're

21· ·getting substantially complete on the structural

22· ·steel.

23· · · · · · ·Q.· Right.

24· · · · · · ·A.· Then when they start enclosing the

25· ·building and they start insulating you're

·1· ·definitely going to end up going in there.· The

·2· ·Plumbing Inspector would be involved then.· The

·3· ·only reason I'm bringing up the plumbing is

·4· ·because I got into the plumbing later on after

·5· ·they got rid of the Plumbing Inspector.· The

·6· ·Plumbing Inspector would be in there for all the

·7· ·rough-ins as well for the drainage system.

·8· · · · · · ·And after that when you're starting to

·9· ·get substantially complete you're probably to

10· ·going to go prior, I would say maybe a month or so

11· ·before, and then you're going to go for a

12· ·substantial completion.· So probably about a

13· ·dozen.· And depending on your comfort level and

14· ·what's taking place, and being a building of that

15· ·size, and you can almost treat the two -- the

16· ·hotel almost as an individual building because

17· ·it's taller, so you might increase that again a

18· ·bit by more inspections.· It depends on what you

19· ·can get at when you're there.

20· · · · · · ·Q.· Would it be appropriate for a Chief

21· ·Building Official to issue an occupancy permit

22· ·knowing a roof was not watertight and simply say,

23· ·Here's your occupancy permit but it's now at your

24· ·own risk because you have a leaky roof and you're

25· ·not in compliance.

·1· · · · · · ·A.· No.

·2· · · · · · ·Q.· Were you made aware at any time,

·3· ·Chief Officer, while you were Building Inspector,

·4· ·or as a Fire Chief, that Mr. Kadlec who had

·5· ·designed the building had been -- had his license

·6· ·taken way by the Professional Engineers of

·7· ·Ontario, and that they had gone to the extent of

·8· ·issuing a bulletin to all of the people who had

·9· ·used Mr. Kadlec's services, including Algoma

10· ·Central Properties who built the Elliot Lake mall,

11· ·and told them they should thoroughly inspect their

12· ·buildings because they might be dangerous because

13· ·of Mr. Kadlec's incompetence?

14· · · · · · ·A.· No, I was not.

15· · · · · · ·Q.· And if you had been given that

16· ·information, Chief Officer, whether as a Building

17· ·Inspector or a chief building official or Fire

18· ·Chief, would it have changed your approach to the

19· ·work that you were doing at the mall?

20· · · · · · ·A.· We probably -- if you're saying it's

21· ·a bulletin I would imagine that the bulletin would

22· ·be asking you to check into it and we probably

23· ·would have done that then.

24· · · · · · ·Q.· All right.· Might you have, for

25· ·example, required a thorough structural steel

·1· ·investigation and report from a qualified

·2· ·engineer?

·3· · · · · · ·A.· Depending on what the bulletin came

·4· ·out on you would I think have a focus the

·5· ·direction of the bulletin.· And if it was a

·6· ·project that was in town that that individual

·7· ·worked on you would try and narrow it down to what

·8· ·that is, and then take the appropriate steps and

·9· ·probably have the owner verify that.

10· · · · · · ·You'd have quite a bit of work to try

11· ·and find out exactly what you're going to and how

12· ·you're going to proceed.

13· · · · · · ·Q.· All right.· Now we've heard

14· ·evidence, Chief Officer, that when the structural

15· ·steel was erected that the steel was out of plumb.

16· ·And that in order to correct this steel wires were

17· ·attached to the building, it was pulled into plumb

18· ·and then anchors were driven into the bedrock

19· ·behind the mall, to which the steel wires were

20· ·attached to hold the building in place.· Is that

21· ·something that you would have approved if you had

22· ·been the Building Inspector inspecting that

23· ·structure?

24· · · · · · ·A.· It would have been something that

25· ·would have been a surprise.· Obviously through the

·1· ·process somebody caught it and that was the

·2· ·remedial action.· If the architect, or in this

·3· ·case it would probably be the engineer that would

·4· ·have done the design for the remedial action, I

·5· ·don't think you would have any say to not approve

·6· ·it if they're signing off on it.

·7· · · · · · ·Q.· All right.· Would you then want to

·8· ·know that as part of the Building Department so

·9· ·that you could inspect those anchors and those

10· ·wires over the years to make sure that they were

11· ·still in a sound condition?

12· · · · · · ·A.· Well you would want to know any

13· ·structural material change like that, yes.

14· · · · · · ·Q.· And it's my information, Chief

15· ·Officer, and we intend to call evidence on this

16· ·point if required, that the steel wires that were

17· ·anchored to the back of the bedrock had in whole

18· ·or in part rusted away completely approximately a

19· ·year before the collapse of the mall.· Do you have

20· ·any information about that?

21· · · · · · ·A.· No.

22· · · · · · ·Q.· If you were building official at

23· ·that time and you observed that condition, knowing

24· ·that those wired had been put in place to hold the

25· ·building in plumb, would you have insisted on

·1· ·remedial action?

·2· · · · · · ·A.· Yeah.· We definitely would have

·3· ·asked for an engineering report or an engineer to

·4· ·look at it.

·5· · · · · · ·Q.· Speaking of engineers, what was your

·6· ·relation -- there was a town engineer at all

·7· ·times, a Mr. Perkins who was on staff with the

·8· ·City?

·9· · · · · · ·A.· That's correct.

10· · · · · · ·Q.· In what circumstances would you

11· ·enlist the support of Mr. Perkins.· For example,

12· ·would you have consulted or worked with Mr.

13· ·Perkins when you received Mr. Wood's report?

14· · · · · · ·A.· No, Mr. Perkins was more into sewer

15· ·and water and those type of things.· I don't

16· ·believe his background is even in building

17· ·construction.· He's more the sewer and water.

18· · · · · · ·Q.· But he is a professional engineer?

19· · · · · · ·A.· Yes, he is.

20· · · · · · ·Q.· In the course of your career with

21· ·the City of Elliot Lake did you ever have occasion

22· ·to consult Mr. Perkins about an engineering report

23· ·and say, This is a really important engineering

24· ·report.· I'd just like your views about whether

25· ·it's an adequate engineering report, since you're

·1· ·not an engineer yourself?

·2· · · · · · ·A.· I know I dealt with Mr. Perkins.

·3· ·You know, I can't recall if it would be something

·4· ·specific like that.· I know it's not in his

·5· ·mandate to do something like that.· But maybe to

·6· ·use him like you said if I just want verification

·7· ·or maybe a direction, yeah, we might have had

·8· ·those conversations.

·9· · · · · · ·Q.· All right.· You said you had a good

10· ·relationship with Mr. Wood.· Did Mr. Wood at any

11· ·time tell you that he was facing disciplinary

12· ·proceedings from the Professional Engineers of

13· ·Ontario that included allegation of incompetence?

14· · · · · · ·MR. MACRAE:· I have an objection, Mr.

15· ·Commissioner, if I might address that.

16· · · · · · ·THE COMMISSIONER:· Yes, sir.

17· · · · · · ·MR. MACRAE:· I think that time frames

18· ·are very important with respect to the issues

19· ·that Mr. Wood was facing.· And I would ask my

20· ·friend to frame his questions in a manner that

21· ·provides time dates, because it is very important

22· ·with respect to what was going on at that time

23· ·with Mr. Wood and his dealings with Mr. Officer.

24· · · · · · ·THE COMMISSIONER:· You can do that, Mr.

25· ·Elliott.

·1· · · · · · ·BY MR. ELLIOTT:

·2· · · · · · ·Q.· I'm simply asking did you know at

·3· ·any time that Mr. Wood was the subject of

·4· ·disciplinary proceedings that -- which eventually

·5· ·led to the loss of his license.· Did you know at

·6· ·any time?

·7· · · · · · ·A.· No.

·8· · · · · · ·Q.· I mean obviously I'm sure you found

·9· ·out in connection with the Commission, but during

10· ·the course of your work with Mr. Wood did you ever

11· ·know that?

12· · · · · · ·A.· No.

13· · · · · · ·Q.· Okay.· Thank you very much, Chief

14· ·Officer, those are my questions.

15· · · · · · ·THE COMMISSIONER:· Thank you.· We'll

16· ·take our morning break at this point.

17· · · · · · ·---· Morning break taken at 10:30 a.m.

18· · · · · · ·---· Upon resuming at 10:50 a.m.

19· · · · · · ·CROSS-EXAMINATION BY MS. PARKER:

20· · · · · · ·Q.· I just wanted to bring you back to

21· ·the prosecution of Eastwood if I could.

22· · · · · · ·A.· Okay.

23· · · · · · ·Q.· At that time do you recall requests

24· ·assistance of Bob Thorpe of the Office of the Fire

25· ·Marshal?

·1· · · · · · ·A.· Yes, I do.

·2· · · · · · ·Q.· And can you tell me what assistance

·3· ·he provided to you?

·4· · · · · · ·A.· Bob is my -- from the Office of the

·5· ·Fire Marshal, he's my fire protection advisor that

·6· ·I work through.· Because we do not issue a lot of

·7· ·charges, and I knew this was going to move forward

·8· ·I asked Bob to give me some assistance.

·9· · · · · · ·And we actually -- he helped me craft

10· ·the informations.· And then we also vetted them

11· ·through the OFM, Nancy -- I can't remember her

12· ·last name, but I believe she's a solicitor with

13· ·the OFM.· And he gave me that assistance to move

14· ·that issue forward.

15· · · · · · ·Q.· Would that Ms. Nancy

16· ·McDonald-Duncan?

17· · · · · · ·A.· Yes, I believe so.· Yes.

18· · · · · · ·Q.· Okay.· And do you remember if Bob

19· ·Thorpe attended at the mall with you?

20· · · · · · ·A.· Yes, he did.

21· · · · · · ·Q.· And what was -- why did he attend

22· ·with you that day?

23· · · · · · ·A.· We were getting down -- it was more

24· ·kind of a joint inspection on getting close to

25· ·wrapping up the hotel retrofit audit.· And I still

·1· ·had I guess some smaller concerns but I wanted to

·2· ·make sure it was thorough.· And Bob does

·3· ·inspections as well in the unorganized areas.· And

·4· ·he also I believe was more familiar with the hotel

·5· ·retrofit, or the hotel sections of the Code

·6· ·because it used to be under the duties of the

·7· ·office of the Fire Marshal years ago.· So he

·8· ·assisted me on that inspection and also where the

·9· ·big assistance was to make sure when we reviewed

10· ·the fire safety plans and all of those

11· ·requirements he was the big help with that too.

12· · · · · · ·Q.· And Bob Thorpe's title is Fire

13· ·Prevention Advisor for the region, is that right?

14· · · · · · ·A.· Protection Advisor, yes.

15· · · · · · ·Q.· Thank you.· And you said that you

16· ·work through him.· What is your relationship to

17· ·Mr. Thorpe?

18· · · · · · ·A.· Not through him.· He's my contact to

19· ·the OFM.· So -- his district manager I believe is

20· ·out of Sudbury.· And actually through this whole

21· ·process we had quite a bit of discussion on

22· ·difficulties of what took place.· I would say

23· ·after when I say difficulties, on getting

24· ·compliance and reports versus orders, it was right

25· ·around that time that I started asking Council for

·1· ·dollars for a new software program that would help

·2· ·monitor these things.· And also moving towards the

·3· ·direction of issuing orders.

·4· · · · · · ·Because also new, and this is coming

·5· ·through Mr. Thorpe, that the office of the Fire

·6· ·Marshal is going to be moving in that direction,

·7· ·shifting from more the soft approach to a harder

·8· ·approach.· And that was actually probably through

·9· ·Patrick Burke who used to be the Office of the

10· ·Fire Marshal -- or the Ontario Fire Marshal to

11· ·move the whole Fire Service as a whole in that

12· ·direction.· And that directive actually came out

13· ·last year.· We've almost there.· We've implemented

14· ·our software this January.· We're actually running

15· ·two systems right now because we're tied up with

16· ·the Inquiry, but we'll get there.

17· · · · · · ·Q.· And you said that Bob Thorpe helped

18· ·to screen the charges and frame them for you, did

19· ·you find that helpful?

20· · · · · · ·A.· Yes.

21· · · · · · ·Q.· Thank you, Mr. Officer?

22· · · · · · ·THE COMMISSIONER:· Thank you, Ms.

23· ·Parker.· Mr. Romano.

24· · · · · · ·MR. ROMANO:· I don't have any

25· ·questionings.

·1· · · · · · ·THE COMMISSIONER:· Thank you.· I think

·2· ·that covers everybody.· Re-examination?

·3· · · · · · ·MR. CASSAN:· Thank you, Mr.

·4· ·Commissioner.

·5· · · · · · ·RE-EXAMINATION BY MR. CASSAN:

·6· · · · · · ·Q.· Not very many questions.· Chief

·7· ·Officer, Mr. Wallace asked about engineering

·8· ·reports and whether you got any of the engineering

·9· ·reports, talking about Trow, Halsall and so on.

10· ·You answered that you didn't get those reports,

11· ·but did any of those engineers, during the course

12· ·of their work, approach you or the Building

13· ·Department to your knowledge?

14· · · · · · ·A.· No.

15· · · · · · ·Q.· Tell me, Chief Officer, how has your

16· ·experience in this file changed your enforcement

17· ·practices?

18· · · · · · ·A.· As we just -- as I was just talking

19· ·a minute ago, we're moving more towards, and this

20· ·is a directive as I said from the Fire Marshal of

21· ·Ontario, to take the entire service -- the Fire

22· ·Service into a more active role instead of using

23· ·the more friendly approaches.· To get more active

24· ·on enforcement through a harder practice, which is

25· ·basically going through and issuing orders

·1· ·immediately.· And I did see the benefit of that

·2· ·moving forward.

·3· · · · · · ·And where the benefit is, if you issue

·4· ·the order right away what happens is that the

·5· ·subject matter of the order doesn't really matter,

·6· ·because if it's still not finished your next step

·7· ·is to issue an order of noncompliance.· So when

·8· ·that actually does go to Court the subject matter

·9· ·is not even really discussed.· It's basically the

10· ·question is, As of this date was this work

11· ·complete, yes or no?· And if it's a no then the

12· ·judge can then say, Okay, well you're not in

13· ·compliance and the fine or force it to be done.

14· · · · · · ·Q.· So that streamlines prosecution?

15· · · · · · ·A.· Yes.

16· · · · · · ·Q.· You were talking to Mr. Wallace

17· ·about the lack of fireproofing or the missing

18· ·fireproofing that was noticed in the 2009

19· ·inspections.· And you were talk about the

20· ·characteristics of the beam and what have you.

21· ·But tell me about the characteristics of the

22· ·building or the building materials that the mall

23· ·was built with.· It's different from a residential

24· ·home.

25· · · · · · ·A.· Oh yes, the mall was constructed

·1· ·under part 3 of the Building Code.· It's

·2· ·noncombustible construction, which everything in

·3· ·there does not burn.· It's all steel or concrete.

·4· ·There's no wood products.· There was, I believe,

·5· ·until about two or three years ago there was a

·6· ·wall put up that had 2x4 studs without a permit.

·7· ·And I believe the building official made them tear

·8· ·it out.· And again that is a combustible material

·9· ·and it has to be noncombustible and it doesn't

10· ·support combustion.

11· · · · · · ·Q.· And so how did that affect your

12· ·level of urgency with respect to the fireproofing?

13· · · · · · ·A.· As I said, the building is not

14· ·combustible so it doesn't support combustion.· The

15· ·fireproofing is part of the fire resistance rating

16· ·of the entire assembly.· It's a component of it.

17· ·And depending on how much is missing it's to help,

18· ·I guess, get a degree of how urgent it becomes.

19· · · · · · ·Q.· Finally, you talked about the

20· ·process or the stages of a fire when you were

21· ·imagining a fire in the library with a sprinkler

22· ·failure.· And you suggested that the end process

23· ·would be a smoldering fire.· Tell us, and tell the

24· ·Commissioner, the technology that you would use to

25· ·actually fight that fire when you got on scene.

·1· · · · · · ·A.· Well, if there was a fire in the

·2· ·library and there was a total sprinkler failure

·3· ·where the sprinkler heads didn't go off.

·4· ·Sprinkler heads are not like TV, it's only the

·5· ·immediate head in the area once that head reaches

·6· ·the 200 or 185 degrees, they're at varying levels.

·7· ·That sprinkler head would go off and extinguish

·8· ·the fire at that level.· So it's never going to

·9· ·ever get any bigger than that.

10· · · · · · ·When you end up -- say there was a total

11· ·failure of the sprinkler system, say the main was

12· ·down for whatever reason.· A fire would start, and

13· ·being a noncombustible building the only thing

14· ·that's going to be burning is the contents.· Once

15· ·the contents they produce a lot of smoke, it fills

16· ·that box.· And a building like that is

17· ·compartmentized, and that's why you compartmentize

18· ·to contain the fire to buy time to permit us to

19· ·come in and extinguish that fire.· That box,

20· ·because there's only so much oxygen, as we talked

21· ·a little bit about yesterday.· The fire will burn,

22· ·it will only get to a certain temperature.· It's

23· ·going to burn hot and fast until it consumes the

24· ·oxygen and then it's going to go back into a

25· ·smoldering fire.

·1· · · · · · ·THE COMMISSIONER:· I was going to ask

·2· ·you about that, Chief.· In a building like this

·3· ·one, for example, the partitions don't extend all

·4· ·the way up to the ceiling, is that correct?

·5· ·Normally?

·6· · · · · · ·THE WITNESS:· It depends on if the wall

·7· ·is required to have a fire resistance rating.

·8· · · · · · ·THE COMMISSIONER:· And I was just

·9· ·wondering about the air flow.· If we have a

10· ·situation where there are a number of tiles

11· ·missing, the air flow from other rooms -- you

12· ·seemed to me to be saying, well because this room

13· ·has just so much air in it.

14· · · · · · ·THE WITNESS:· Yes.

15· · · · · · ·THE COMMISSIONER:· And it's constrained

16· ·by these four walls that's is all the oxygen

17· ·you're going to get.· But couldn't you be getting

18· ·oxygen from elsewhere?

19· · · · · · ·THE WITNESS:· Yeah.· If it's -- you're

20· ·correct but most of them -- if it's a required

21· ·fire separation then those do go right up to the

22· ·ceiling and they're sealed at that level.

23· · · · · · ·THE COMMISSIONER:· And do you know in

24· ·respect to the library if there was such a

25· ·requirement?

·1· · · · · · ·THE WITNESS:· Definitely along the

·2· ·backside of the library because that's an exit

·3· ·corridor.· So that exit corridor would be

·4· ·protected from that air coming through into the

·5· ·space.

·6· · · · · · ·THE COMMISSIONER:· And of course an

·7· ·exterior wall as well.

·8· · · · · · ·THE WITNESS:· And an exterior wall.

·9· · · · · · ·THE COMMISSIONER:· But wouldn't air have

10· ·been coming in from other areas?

11· · · · · · ·THE WITNESS:· If the door was open in

12· ·places like that, yes.

13· · · · · · ·THE COMMISSIONER:· I'm thinking of the

14· ·ceiling.

15· · · · · · ·THE WITNESS:· No, they're

16· ·compartmentized pretty good.

17· · · · · · ·THE COMMISSIONER:· And something I never

18· ·understood until this Commission was, I questioned

19· ·I recall the engineering that we had as an expert,

20· ·but why fireproof something that's not

21· ·combustible.· But he explained to me, and I take

22· ·it you confirm that, that steel weakens at a

23· ·certain temperature and that that could affect the

24· ·reduction in the structural strength of the

25· ·edifice as opposed to burning.

·1· · · · · · ·THE WITNESS:· That's correct.

·2· · · · · · ·THE COMMISSIONER:· Is that so?

·3· · · · · · ·THE WITNESS:· Yeah, that's correct and

·4· ·it's part of the entire assembly.· A fire

·5· ·separation is made up of the entire assembly not

·6· ·just the one component.· And that's all factored

·7· ·in.· You know, in the event of a fire a slab is

·8· ·going to absorb a lot of that heat; the steel is

·9· ·going to absorb a lot of that heat; the fire

10· ·resistance material on the beam is to slow that

11· ·heat penetration down.· You can have walls that

12· ·are in between tenant spaces that might not have a

13· ·fire rating, but they have a fire -- basically

14· ·it's a barrier.· Most fire separations might it be

15· ·45 minute and it's to last that time.· You can

16· ·have a separation that's basically just a divider

17· ·to stop the passage of smoke and heat in that

18· ·particular case.· To compartmentize the entire

19· ·structure all of the exit corridors and that

20· ·they're rated to buy time for people to get out of

21· ·the building.

22· · · · · · ·BY MR. CASSAN:· .

23· · · · · · ·Q.· And so I was asking about the

24· ·technique you would use to fight that fire?

25· · · · · · ·A.· I'm sorry.· I never did answer your

·1· ·question.· Yeah, when -- I can give you an example

·2· ·of that and we actually had this fire just a

·3· ·little while ago, and it's similar because it's in

·4· ·a compartment.· We ended up, myself and another --

·5· ·the individual on shift, we responded to a fire up

·6· ·on Axesmith, which is just behind.· And when we

·7· ·were coming down the road the entire attic space

·8· ·was on fire.· The flames were probably shooting

·9· ·about 30 or 40 feet out of the twirley vent.

10· ·There was a construction company on site working

11· ·at the front of the house.· And my first thought

12· ·was that we're not going to be able to save this

13· ·place.

14· · · · · · ·Anyway we pulled up, all of the

15· ·individuals were out of the house.· The next door

16· ·neighbor was one of our former Councillors.· So

17· ·what I ended up doing, I pulled the line off the

18· ·truck and put it in a fog pattern.· The other

19· ·individual started the pump.· And basically when

20· ·you have the proper fog pattern I was able to get

21· ·up, because they had an opening at the gable end,

22· ·which is the end of the attic space.· And you

23· ·swirl the hose around in a big pattern and then

24· ·you shut it off that water then hits -- because

25· ·you're using the water droplets.· And the droplets

·1· ·expand 1800 times to steam, it expands 1800 times

·2· ·and it actually pulled through the whole attic and

·3· ·we were successful in actually getting that fire

·4· ·out pretty much in just that one shot.

·5· · · · · · ·That's exactly what would happen if you

·6· ·say had that fire in the library and you had a

·7· ·contents fire like that.· You would open it up,

·8· ·fog it and then actually close the space so that

·9· ·the water and the steam it does two things.· It

10· ·extinguishes the fire and also reduces the heat

11· ·very rapidly in the unit.

12· · · · · · ·THE COMMISSIONER:· And I take it it

13· ·starves the fire of oxygen?

14· · · · · · ·THE WITNESS:· Yes.· And it takes away

15· ·the heat is really the big one on that.

16· · · · · · ·BY MR. CASSAN:

17· · · · · · ·Q.· Thank you, Chief, I have no further

18· ·questions.

19· · · · · · ·THE COMMISSIONER:· Thank you.· Mr.

20· ·Wallace.

21· · · · · · ·RE-EXAMINATION BY MR. WALLACE:

22· · · · · · ·Q.· Just very briefly.· Chief, I just

23· ·want to clarify something in respect of your

24· ·evidence with respect to Mr. Longo's questioning.

25· ·As I understood you to say in preparation for the

·1· ·inquiry, you reviewed the plans of the mall, is

·2· ·that correct?

·3· · · · · · ·A.· No, the file.

·4· · · · · · ·Q.· Okay.· Did you at any point in time

·5· ·see any of the plans on the file?

·6· · · · · · ·A.· No, I did not.

·7· · · · · · ·Q.· Okay.· And what then -- what role

·8· ·did you ascribe to Mr. Hollick that showed up in

·9· ·your review of the file?

10· · · · · · ·A.· What role?

11· · · · · · ·Q.· Yes.

12· · · · · · ·A.· He signed off the occupancy permit.

13· · · · · · ·Q.· Right.

14· · · · · · ·A.· And the I believe all of the

15· ·inspections, other than the plumbing inspector

16· ·that was there, that were in the file.

17· · · · · · ·Q.· But nothing with respect to the

18· ·review of the actual plans themselves because you

19· ·didn't see the plans?

20· · · · · · ·A.· That's correct.

21· · · · · · ·Q.· Okay, thank you.· Those are my

22· ·questions.

23· · · · · · ·THE COMMISSIONER:· Chief Officer, I

24· ·think that's it at least for the while.· You'll be

25· ·back.

·1· · · · · · ·THE WITNESS:· Yes.

·2· · · · · · ·THE COMMISSIONER:· Or two.

·3· · · · · · ·THE WITNESS:· Yes.

·4· · · · · · ·THE COMMISSIONER:· Thank you very much

·5· ·for your help, sir.

·6· · · · · · ·THE WITNESS:· Thank you.

·7· · · · · · ·MR. CASSAN:· Mr. Commissioner, while

·8· ·we're on a brief intermission I would ask that Mr.

·9· ·Shoemaker attend to the next witness.

10· · · · · · ·THE COMMISSIONER:· Thank you.

11· · · · · · ·MR. WALLACE:· Ms. Effendi will be

12· ·calling the next witness, Commissioner.

13· · · · · · ·THE COMMISSIONER:· I wanted to know if

14· ·Mr. MacRae might want to use the interval for

15· ·his purposes?

16· · · · · · ·MR. MACRAE:· If I might, Mr.

17· ·Commissioner.· Thank you for providing me with

18· ·this opportunity.· I wanted to deal with an issue.

19· ·On yesterday's date Mr. Wood was charged under the

20· ·Occupational Health and Safety Act with a charge,

21· ·and I believe that's public information.· I'm not

22· ·sure whether the Commission is aware of it or not.

23· · · · · · ·THE COMMISSIONER:· I read it on the

24· ·news.

25· · · · · · ·MR. MACRAE:· I don't intend to deal with

·1· ·that issue, aside from saying there's a

·2· ·presumption of innocence that deals with that.

·3· ·But I want to -- I'm using the term "reassure",

·4· ·but I think that's too strong a term, but nothing

·5· ·else comes to mind.· I wanted to reassure the

·6· ·Commission that I have spoken with my client, Mr.

·7· ·Wood, and he remains committed to participating in

·8· ·the Commission, understanding very clearly that

·9· ·the purpose of the Commission is not to assign

10· ·fault.· That this hasn't been a process trying to

11· ·determine who's at fault, but rather to determine

12· ·what has occurred.· And as the mandate makes

13· ·clear, to make recommendations so that it doesn't

14· ·occur again.

15· · · · · · ·But I wanted to publically state on

16· ·behalf of Mr. Wood that he does remain committed.

17· ·He's going to be attending to provide information

18· ·with respect to his willsay statement, and he'll

19· ·also be attending to give evidence.· And the

20· ·purpose of that participation is to assist the

21· ·Commission.· And the issue with respect to the

22· ·charges will be dealt with in due course.· But it

23· ·is bifurcated, it has nothing to do with the

24· ·Commission.· And Mr. Wood intends to continue to

25· ·participate fully from that perspective.

·1· · · · · · ·THE COMMISSIONER:· And of course I think

·2· ·it's worth mentioning publicly that the

·3· ·legislation grants him complete protection from

·4· ·any statement made within the confines of this

·5· ·hearing.· That none of those can be used in any

·6· ·way against him in any prosecution, any form of

·7· ·prosecution.· And I take it of course that you are

·8· ·fully and he is fully aware of that, the public

·9· ·may not.

10· · · · · · ·MR. MACRAE:· Thank you very much.· I

11· ·think that's of assistance.· Subject to any

12· ·questions or comments you may have.

13· · · · · · ·THE COMMISSIONER:· Thank you very much,

14· ·Mr. MacRae.· Your comments are noted.· I

15· ·appreciate the position taken by Mr. Wood.

16· · · · · · ·MR. MACRAE:· Thank you.

17· · · · · · ·THE COMMISSIONER:· Are you prepared to

18· ·go right now, Ms. Effendi, or do you want five

19· ·minutes?

20· · · · · · ·MS. EFFENDI:· I am, Mr. Commissioner.

21· · · · · · ·THE COMMISSIONER:· Okay.

22· · · · · · ·MR. SHOEMAKER:· Mr. Commissioner, if I

23· ·might just make a point.· Mr. Clouthier is quite

24· ·hard of hearing.· If he seems not to understand

25· ·the question it's just because he is hard of

·1· ·hearing so please keep that in mind.· Thank you.

·2· · · · · · ·THE COMMISSIONER:· With Mr. Effendi

·3· ·don't think it will be difficult.· Her size belies

·4· ·her voice.

·5· · · · · · ·MS. EFFENDI:· We are just going to

·6· ·approach the witness to ensure he has all of the

·7· ·briefs that I'll be referring to during his

·8· ·testimony.· But I'm sure Mr. Registrar at any time

·9· ·you can swear in the witness.

10· · · · · · ·THE COMMISSIONER:· If you have trouble

11· ·hearing anything we say, sir, just let us know and

12· ·we'll bring our voices up.· We sometimes forget.

13· · · · · · ·THE CLERK:· Good morning, sir.

14· · · · · · ·THE WITNESS:· Good morning.

15· · · · · · ·THE CLERK:· Do you wish to proceed in

16· ·English or French?

17· · · · · · ·THE WITNESS:· English.

18· · · · · · ·THE CLERK:· Do you prefer to swear on a

19· ·religious document or do you prefer to affirm?

20· · · · · · ·THE WITNESS:· Bible.

21· · · · · · ·THE CLERK:· Bible, all right.

22· · · · · · ·CHRIS CLOUTHIER, sworn.

23· · · · · · ·THE CLERK:· If you could please state

24· ·your name in full and spell it for the record.

25· · · · · · ·THE WITNESS:· Chris Clouthier.

·1· ·C-H-R-I-S C-L-O-U-T-H-I-E-R.

·2· · · · · · ·THE CLERK:· Thank you very much.

·3· · · · · · ·EXAMINATION-IN-CHIEF BY MS. EFFENDI:

·4· · · · · · ·Q.· Good morning, Mr. Clouthier.

·5· · · · · · ·A.· Good morning.

·6· · · · · · ·MS. EFFENDI:· Before I start the

·7· ·examination, Mr. Commissioner, I just wanted to

·8· ·put on the record the fact that during the

·9· ·examination of Mr. Clouthier I be will entering as

10· ·Exhibits No. 2335 to 2341, as well as 2360 to

11· ·3750.

12· · · · · · ·THE COMMISSIONER:· You're doing that

13· ·right now?

14· · · · · · ·MS. EFFENDI:· Yes.· This is what has

15· ·been called the City Compilation Witness brief so

16· ·those documents will be used with Mr. Clouthier,

17· ·as well as several other witnesses that will come

18· ·before the Commission next week.

19· · · · · · ·THE COMMISSIONER:· I just want to

20· ·understand, they weren't entered by Mr. Doody

21· ·previously.

22· · · · · · ·MS. EFFENDI:· No, they were not.

23· · · · · · ·THE COMMISSIONER:· We're doing that now

24· ·compendiously?

25· · · · · · ·MS. EFFENDI:· Yes.

·1· · · · · · ·THE COMMISSIONER:· And if there are any

·2· ·objections to any of those documents we'll follow

·3· ·the same procedure we did with respect to the

·4· ·original compendium of documents.

·5· · · · · · ·MS. EFFENDI:· Absolutely.

·6· · · · · · ·EXHIBIT NO. 2335-2361:· City of Elliot

·7· · · · · · ·Lake documents.

·8· · · · · · ·EXHIBIT NO. 2360-3750:· City of Elliot

·9· · · · · · ·Lake documents.

10· · · · · · ·BY MS. EFFENDI:

11· · · · · · ·Q.· Before we start, Mr. Clouthier, into

12· ·the substance I'd just like to address with you

13· ·some of your background.· I understand that you

14· ·worked for 25 years as carpenter in Sault Ste.

15· ·Marie?

16· · · · · · ·A.· Yes.

17· · · · · · ·Q.· And that in 1999 you obtained a two-

18· ·Construction Engineer Technical Diploma from Sioux

19· ·College?

20· · · · · · ·A.· Yes.

21· · · · · · ·Q.· After graduating in 1999 I

22· ·understand that you tried to obtain work as a

23· ·Building Inspector but were unsuccessful so you

24· ·went back to the carpenter business?

25· · · · · · ·A.· That's correct.

·1· · · · · · ·Q.· In the summer of 2004 you saw a

·2· ·position being advertised for a Building Inspector

·3· ·at the City of Elliot Lake and you applied for

·4· ·that position, were interviewed and you got the

·5· ·position?

·6· · · · · · ·A.· Yes, that's correct.

·7· · · · · · ·Q.· And you started working for the City

·8· ·of Elliot Lake as a Building Inspector on

·9· ·September 7, 2004?

10· · · · · · ·A.· Yes.

11· · · · · · ·Q.· I understand that you -- when you

12· ·started you replaced Mr. Blaine Roussy

13· · · · · · ·A.· Yes.

14· · · · · · ·Q.· And I understand that for the

15· ·position you moved to Elliot Lake with your

16· ·family?

17· · · · · · ·A.· Yes.

18· · · · · · ·Q.· And I understand that your wife

19· ·actually is originally from Elliot Lake?

20· · · · · · ·A.· Yes, born and raised here.· Yup.

21· · · · · · ·Q.· Had you ever visited the Algo Centre

22· ·Mall prior to you moving to Elliot Lake and

23· ·starting to work at the City of Elliot Lake?

24· · · · · · ·A.· No, I didn't.

25· · · · · · ·Q.· So I would like to now turn to some

·1· ·of your qualifications if I could.· I understand

·2· ·that you are a member of the Ontario Building

·3· ·Officials Association, the OBOA?

·4· · · · · · ·A.· Yes.

·5· · · · · · ·Q.· Are you a Certified Building Code

·6· ·Official, sir?

·7· · · · · · ·A.· Yes.

·8· · · · · · ·Q.· And I understand that this is a

·9· ·professional designation that can be received from

10· ·the OBOA after a certain training is completed,

11· ·and after requisite experience is acquired, is

12· ·that your understanding?

13· · · · · · ·A.· That's correct.

14· · · · · · ·THE COMMISSIONER:· And you put BCO

15· ·behind your name, is that right?

16· · · · · · ·THE WITNESS:· That's correct, yes.

17· · · · · · ·THE COMMISSIONER:· Thank you.

18· · · · · · ·BY MS. EFFENDI:

19· · · · · · ·Q.· I understand that you were certified

20· ·as a CBCO on January 31, 2008?

21· · · · · · ·A.· That's correct.

22· · · · · · ·Q.· So when you started the position of

23· ·building inspector at the City of Elliot Lake you

24· ·didn't have all the qualifications, as I

25· ·understand it, but you acquired them as you went

·1· ·along?

·2· · · · · · ·A.· That's correct, yes.

·3· · · · · · ·Q.· Okay.· In fact am I right, sir, and

·4· ·we don't need to turn it up subject to what you

·5· ·tell me.· But Mr. Allard when he prepared a

·6· ·report -- at one point Mr. Allard prepared a

·7· ·report in May 2006 to Council to advise them of

·8· ·recent legislation amendment.· And he advised them

·9· ·at the time in May 2006 that while he had all the

10· ·qualifications you didn't have them yet but you

11· ·were going to get them, is that your correct?

12· · · · · · ·A.· That's correct, yes.

13· · · · · · ·Q.· Are you a member, sir, of the

14· ·Ontario Association of Property Standards

15· ·Officers?

16· · · · · · ·A.· Yes.

17· · · · · · ·Q.· Are you certified as a Property

18· ·Standards Officer?

19· · · · · · ·A.· Yes.

20· · · · · · ·Q.· And when you would did you obtain

21· ·your certification?

22· · · · · · ·A.· I obtained the first level I believe

23· ·it was the spring of 2006 or 2007.

24· · · · · · ·Q.· Okay.· And when you say the first

25· ·level I understand --

·1· · · · · · ·MS. EFFENDI:· And maybe, Ms. Kuka, to

·2· ·assist Mr. Clouthier we can pull Exhibit No. 2105.

·3· · · · · · ·BY MS. EFFENDI:

·4· · · · · · ·Q.· I understand that there are three

·5· ·training, the basic, intermediate and advanced?

·6· · · · · · ·A.· That's correct, yes.

·7· · · · · · ·Q.· And so I understand from your

·8· ·previous answer then that you obtained the basic

·9· ·training?

10· · · · · · ·A.· That's right, yes.

11· · · · · · ·Q.· And we'll just wait for the document

12· ·to pull up.· You will see here, sir, this is a

13· ·document that was filed before the Commission by a

14· ·representative of the Ontario Association of

15· ·Property Standards Officers and it describes the

16· ·training offered by the Association.· I gather you

17· ·will see there are three parts, the first part

18· ·being the basic.· And it outlines here the three

19· ·components, investigation, legal and construction.

20· · · · · · ·A.· That's correct.

21· · · · · · ·Q.· And those are the components that

22· ·you would have received in terms of training for

23· ·that basic part one?

24· · · · · · ·A.· That's correct.

25· · · · · · ·Q.· Okay.· In addition to what we've

·1· ·covered in terms of your certification with the

·2· ·OBOA and with the OAPSO, have you taken any other

·3· ·additional courses?

·4· · · · · · ·A.· Yes.· I've take quite a few through

·5· ·the OBOA.· And I have written all of the Ministry

·6· ·exams, additional things.

·7· · · · · · ·Q.· Okay.· So you've taken sort of

·8· ·continuing kind of development courses?

·9· · · · · · ·A.· That's right, yes.

10· · · · · · ·Q.· Now, if we could turn to your duties

11· ·as a Building Inspector.· Can you describe the

12· ·Commissioner generally what are the duties of a

13· ·Building Inspector?

14· · · · · · ·A.· Mainly I would be involved in doing

15· ·plans review on a regular basis.· Any plans

16· ·that -- for projects of building in our City I

17· ·would review those.· And I'd also be responsible

18· ·for inspections as the job was going on.

19· · · · · · ·Q.· And we've heard as well several

20· ·people come forward and speak to us about the

21· ·Property Standards By-Law.· Would that be

22· ·something that would be part of your duties?

23· · · · · · ·A.· Yes.

24· · · · · · ·Q.· So would it be fair to say that

25· ·there's kind of two general components, one being

·1· ·your duties in relation to the Building Code,

·2· ·whether it's renovation or new construction.· And

·3· ·then there's also an aspect in terms of anything

·4· ·in relation to enforcement of by-laws?

·5· · · · · · ·A.· That's correct, yes.

·6· · · · · · ·Q.· Okay.· And when it comes to the

·7· ·issue of the Property Standards By-Laws, and we'll

·8· ·take a look at it in a few minutes in more detail,

·9· ·but would you agree with me that the purpose of

10· ·that by-law would be to ensure that, you know,

11· ·there is a public welfare that is maintained?

12· · · · · · ·A.· Yes.· Overall, yes.

13· · · · · · ·Q.· Okay.· Am I right that as a Building

14· ·Inspector you report to the Chief Building

15· ·Official?

16· · · · · · ·A.· Yes.

17· · · · · · ·Q.· So when you first started you

18· ·reported to Mr. Allard?

19· · · · · · ·A.· That's correct, yes.

20· · · · · · ·Q.· And I believe you reported to him

21· ·until May 30, 2008?

22· · · · · · ·A.· Yes.

23· · · · · · ·Q.· And then after that you started

24· ·reporting to Mr. Bruce Ewald in July of 2008?

25· · · · · · ·A.· That's correct, yes.

·1· · · · · · ·Q.· Okay.· When you first started

·2· ·working at the City in 2004 how many people worked

·3· ·at the Building Department?

·4· · · · · · ·A.· Three of us.

·5· · · · · · ·Q.· So the CBO?

·6· · · · · · ·A.· CBO, a Clerk and myself.

·7· · · · · · ·Q.· Okay.· And so there was one Building

·8· ·Inspector and that was you?

·9· · · · · · ·A.· That's correct.

10· · · · · · ·Q.· And did the number of building

11· ·inspectors increase or decrease during your time

12· ·at the City?

13· · · · · · ·A.· In· December of 2006 we had an

14· ·additional building inspector come on board.

15· · · · · · ·Q.· Okay.· And was that Mr. Dale Swan?

16· · · · · · ·A.· Yes.

17· · · · · · ·Q.· And is Mr. Swan still currently

18· ·employed by the City of Elliot Lake?

19· · · · · · ·A.· No, he's no longer working there.

20· · · · · · ·Q.· I understand that he left in May

21· ·2012?

22· · · · · · ·A.· I believe that's correct, yes.

23· · · · · · ·Q.· Okay.· So currently the City has one

24· ·Building Inspector?

25· · · · · · ·A.· Yes.

·1· · · · · · ·Q.· I understand that when Mr. Swan

·2· ·started working at the end of 2006, beginning of

·3· ·2007, the duties of the Building Inspector

·4· ·position were divided equally between you and him

·5· ·by Mr. Allard?

·6· · · · · · ·A.· Yes, that's right.· Yes.

·7· · · · · · ·Q.· So basically anything in relation to

·8· ·the Property Standards By-Law, any building

·9· ·permit, new construction, everything like that was

10· ·divide between the two of you?

11· · · · · · ·A.· Yes.

12· · · · · · ·Q.· And we don't need to pull it up, Ms.

13· ·Kuka, but there is a document, Mr. Commissioner,

14· ·if you're introduced in looking at it, it's

15· ·Exhibit's No. 3380, which describes those duties

16· ·in detail.

17· · · · · · ·Now, Mr. Clouthier, I would like to take

18· ·a look at the Property Standards By-Law which

19· ·we've kind of a alluded to.

20· · · · · · ·MS. EFFENDI:· Ms. Kuka, if we can pull

21· ·please Exhibit No. 6-7.

22· · · · · · ·BY MS. EFFENDI:

23· · · · · · ·Q.· And, Mr. Clouthier, I don't know if

24· ·you want to be looking at the screen or you prefer

25· ·to have those books in front of you.· We have a

·1· ·paper copy of the by-law if you want to look at

·2· ·it.· It's in volume 5, and it would be tab 29.· Do

·3· ·you have that in front of you, sir?

·4· · · · · · ·A.· Yes.

·5· · · · · · ·Q.· Are you familiar with this by-law?

·6· · · · · · ·A.· Yes, I am.

·7· · · · · · ·Q.· Okay.

·8· · · · · · ·MS. EFFENDI:· And if we could turn, Ms.

·9· ·Kuka, to page 528.

10· · · · · · ·BY MS. EFFENDI:

11· · · · · · ·Q.· You'll see, Mr. Clouthier, at the

12· ·bottom hand right there's a number there.· So if

13· ·you turn to 528, and more specifically I'm

14· ·interested in section 2 at the bottom of that page

15· ·where it says, "STRUCTURAL CAPACITY ", do you see

16· ·that?

17· · · · · · ·A.· Yes.

18· · · · · · ·Q.· Are you familiar, sir, with this

19· ·section 2 that provides that a building has to be

20· ·maintained in a structurally sound condition?

21· · · · · · ·A.· Yes.

22· · · · · · ·Q.· Okay.· And if we could turn to page

23· ·529, and more specifically the section that deals

24· ·with roofs, right in the middle of the page.

25· ·You'll see that this section provides that a

·1· ·building has to be maintained in a watertight

·2· ·condition as to prevent leakage of water into the

·3· ·building.· Are you familiar with that provision?

·4· · · · · · ·A.· Yes.

·5· · · · · · ·Q.· Okay.· And I understand that the

·6· ·enforcement process, generally speaking, under the

·7· ·Property Standards By-Law is the following, and

·8· ·correct me if I'm wrong.· I understand that if a

·9· ·complaint is filed, and we'll come back to the

10· ·issue of what a complaint is, and if there is a

11· ·determination made by the Building Department that

12· ·there's a violation of the by-law, then the City

13· ·can issue a notice and/or an order outlining the

14· ·repairs that must be done by a certain date?

15· · · · · · ·A.· That's correct.

16· · · · · · ·Q.· Okay.· And I understand that if the

17· ·owner of the property is not satisfied with this

18· ·notice order then he can appeal to the Property

19· ·Standards Committee of the City?

20· · · · · · ·A.· That's correct, yes.

21· · · · · · ·Q.· And then after that there is a

22· ·second level of appeal which can be exercises

23· ·either by the owner or by the City to the Superior

24· ·Court of Justice, to the Courts?

25· · · · · · ·A.· Yes.

·1· · · · · · ·Q.· I understand that the City of Elliot

·2· ·Lake, to enforce this by-law has actually adopted

·3· ·a policy in terms of enforcement, is that correct?

·4· · · · · · ·A.· Yes.

·5· · · · · · ·Q.· And during your tenure at the City

·6· ·two different policies were adopted in respect to

·7· ·the enforcement of the Property Standards By-Law?

·8· · · · · · ·A.· That's correct, yes.

·9· · · · · · ·Q.· So when you started in 2004 it was

10· ·the 1995 policy that was in place.· So if you take

11· ·your book, which is volume 2, you'll be able to

12· ·find that.

13· · · · · · ·MS. EFFENDI:· And, Ms. Kuka, it's

14· ·Exhibit No. 6-8.

15· · · · · · ·BY MS. EFFENDI:

16· · · · · · ·Q.· So your volume 2 it will be at tab

17· ·116, sir.· So you'll see that you have in front of

18· ·you here the report of the City Clerk, which

19· ·provides that the policy has been adopted by the

20· ·Council.· And if we turn to the page that ends

21· ·with 227.· This is where we have the enforcement

22· ·practice for the Property Standards By-Law right

23· ·there in the middle of the page.· You have that in

24· ·front of you?

25· · · · · · ·A.· Yes.

·1· · · · · · ·Q.· And you'll see that it indicates in

·2· ·terms of level of service enforcement on the right

·3· ·hand side, "Enforcement is complaint driven."

·4· · · · · · ·MS. EFFENDI:· And I'll pause here for a

·5· ·second just to indicate, Mr. Commissioner, we

·6· ·understand that the handwriting that is on this

·7· ·document was probably put there after 1995 so we

·8· ·can ignore the handwriting for now.

·9· · · · · · ·BY MS. EFFENDI:

10· · · · · · ·Q.· So, Mr. Clouthier, I understand that

11· ·the policy was complaint driven.· What did you

12· ·understand complaint driven meant and still means?

13· · · · · · ·A.· Well our office would have to

14· ·receive a complaint on the phone or in person.

15· ·The Clerk at the office would take that

16· ·information, put it into a database and they would

17· ·be printed and put back to us.· And that would

18· ·give us an opportunity to go investigate what the

19· ·complaint was about.

20· · · · · · ·Q.· Okay.· So just to clarify then, the

21· ·complaint can be oral or in writing?

22· · · · · · ·A.· That's correct.

23· · · · · · ·Q.· Okay.· And if it was in writing

24· ·could it be in the form of an e-mail to the City?

25· · · · · · ·A.· I would imagine so, yes.

·1· · · · · · ·Q.· Okay.· And when you indicated that

·2· ·there was a system, I understand that there was

·3· ·kind of a complaint database that was basically

·4· ·managed by the Building Department, is that

·5· ·correct?

·6· · · · · · ·A.· Yes.

·7· · · · · · ·Q.· And you indicated that the Clerk

·8· ·would enter the information in that database and

·9· ·then would "give it to us".· When you said, "us"

10· ·do you mean the Building Inspectors?

11· · · · · · ·A.· That's correct, yes.

12· · · · · · ·Q.· Okay.· And she would be the one

13· ·assigning it to the Building Inspectors?

14· · · · · · ·A.· Yes.

15· · · · · · ·Q.· And what would happen if you as a

16· ·Building Inspector became aware of a violation of

17· ·the Property Standards By-Law but no complaint had

18· ·been made?

19· · · · · · ·A.· If it wasn't a safety issue I don't

20· ·believe we would have done anything.· It was

21· ·complaint driven so you had to get the complaint

22· ·to go investigate.

23· · · · · · ·Q.· Can you elaborate?· You said "unless

24· ·it's a safety issue."· What do you mean by that?

25· · · · · · ·A.· If I was driving around the City and

·1· ·I seen, as an example, long grass in someone's

·2· ·yard I couldn't stop or write something up and

·3· ·deal with it.· It would have to be -- a complaint

·4· ·would have to be given first.

·5· · · · · · ·Q.· Okay.· And in your period of time

·6· ·where you worked with the City had you had

·7· ·circumstances where you became aware of a

·8· ·situation that wasn't safe that you took

·9· ·pro-active action on your own?

10· · · · · · ·A.· Likely.· I can't think of anything

11· ·at the moment.· But --

12· · · · · · ·Q.· So it wouldn't have been something

13· ·unusual, would that be fair?

14· · · · · · ·A.· It's not something that would have

15· ·happened very often.

16· · · · · · ·Q.· Okay.

17· · · · · · ·A.· But if something was dangerous and

18· ·you were aware of it it would be wise or common

19· ·practice to deal with it.

20· · · · · · ·Q.· Okay.· And what would happen if

21· ·someone instead of complaining directly to the

22· ·Building Department, because they didn't know that

23· ·they had to complain to the Building Department,

24· ·they complained to let's say to the Chief

25· ·Administrative Officer, or the Mayor or the

·1· ·Councillor, or the Council?

·2· · · · · · ·A.· I'm not sure.· I just know that if

·3· ·we got a complaint come to our office we were

·4· ·responsible after getting that complaint to deal

·5· ·with it.

·6· · · · · · ·Q.· Okay.· And would you expect other

·7· ·members of the City to be -- to know?· To

·8· ·basically forward that information on to the

·9· ·Building Department?

10· · · · · · ·A.· They did on a fairly regular basis.

11· · · · · · ·Q.· Okay.· So it wasn't something that

12· ·wasn't uncommon for someone else from the City,

13· ·either from the political side or the staff, to

14· ·forward on to you a complaint, to the Building

15· ·Department a complaint?

16· · · · · · ·A.· It happened quite often, yes.

17· · · · · · ·Q.· Okay.· I understand that in 2006 the

18· ·City Council adopted a new policy for the

19· ·enforcement of the Property Standards By-Law.

20· · · · · · ·A.· That's correct.

21· · · · · · ·Q.· And if you could turn to that new

22· ·policy -- well actually let's turn first -- it's

23· ·in volume 7 in front of you.

24· · · · · · ·MS. EFFENDI:· And, Ms. Kuka, it's

25· ·Exhibit No. 3339.

·1· · · · · · ·BY MS. EFFENDI:

·2· · · · · · ·Q.· And it will be tab 3 sir.· So we

·3· ·have here in front of us, sir, a letter from the

·4· ·Clerk, Ms. Sprague, to the secretary of the budget

·5· ·committee advising that there was a resolution

·6· ·adopted by the City Council with respect to the

·7· ·new policy in terms of the enforcement of the

·8· ·Property Standards By-Law.

·9· · · · · · ·And you'll see in here that it's

10· ·indicated that this was adopted in principle, I

11· ·gather, and referred to the Budget and Personal

12· ·Committee for them to deal with the impact of

13· ·adopting this new policy.

14· · · · · · ·MS. EFFENDI:· And if we turn, Ms. Kuka,

15· ·to page 205.

16· · · · · · ·BY MS. EFFENDI:

17· · · · · · ·Q.· If you keep turn, sir, in the tab to

18· ·205 is a report from Mr. Allard that he provided

19· ·to Council with respect to this new enforcement

20· ·policy.· And if we turn to the next pages you'll

21· ·see that Mr. Allard provided quite a lengthy

22· ·report to Council in terms of this new policy, as

23· ·well as the consequences, and the requirement in

24· ·terms staffing to be able to implement this new

25· ·policy.· Did you participate with Mr. Allard in

·1· ·the drafting or preparation of this report?

·2· · · · · · ·A.· No, I had nothing to do with it.

·3· · · · · · ·Q.· Were you involved in the preparation

·4· ·or the creation of this new policy?

·5· · · · · · ·A.· No.

·6· · · · · · ·Q.· Okay.· So you were in charge of

·7· ·implementing it once it was adopted by Council?

·8· · · · · · ·A.· That's correct, yeah.

·9· · · · · · ·Q.· Okay.· So let's take a look at this

10· ·policy.· And if you turn your attention to tab 7

11· ·-- sorry, tab 21.

12· · · · · · ·MS. EFFENDI:· And, Ms. Kuka, it is

13· ·Exhibit No. 3349.

14· · · · · · ·BY MS. EFFENDI:

15· · · · · · ·Q.· You'll see the date of July 24, 2006

16· ·and that's when City Council formally adopted this

17· ·new policy.· And if we turn to the actual policy,

18· ·you'll find it, sir, at the page at the bottom

19· ·hand right corner that finishes with 9.· You have

20· ·that in front of you?

21· · · · · · ·A.· Yes.

22· · · · · · ·Q.· And we'll just wait for it to come

23· ·up on the screen here.· And you'll see that this

24· ·is now a description of the new policy for the

25· ·Property Standards By-Law.· It indicates at the

·1· ·top that "Enforcement in complaint driven except

·2· ·as stated below for commercial and multi-unit

·3· ·residential properties."· And if we jump ahead

·4· ·you'll see that the third paragraph indicates

·5· ·that:

·6· · · · · · ·"Pro-Active Inspection Program --

·7· · · · · · ·Commercial and Multi-Unit Residential:

·8· · · · · · ·All vacant buildings and all multi-unit

·9· · · · · · ·buildings having a vacancy of 50% or more

10· · · · · · ·and all commercial properties and all

11· · · · · · ·multi-residential properties having more

12· · · · · · ·than 3 units."

13· ·And it says, "Buildings falling within this

14· ·criteria will trigger a property standards

15· ·inspection."

16· · · · · · ·Can you tell the Commissioner what was

17· ·your understanding of this new policy and the

18· ·difference between this one and the one that you

19· ·had before?

20· · · · · · ·A.· Well basically just what it says.

21· ·They were going after a group of buildings in town

22· ·that were falling under a certain criteria that if

23· ·they were 50% vacant, or completely vacant, it was

24· ·something that we were now allowed to go forward

25· ·on ourselves to look into.

·1· · · · · · ·Q.· So you didn't need a complaint to be

·2· ·able to go and inspect those properties?

·3· · · · · · ·A.· That's correct, yes.

·4· · · · · · ·Q.· And what did the 50% vacant mean?· I

·5· ·mean, how was the 50% determined?· Let's start

·6· ·first, for example, with the multi-residential

·7· ·building?

·8· · · · · · ·A.· If, for example, it was an 8-unit

·9· ·apartment building and there was only three

10· ·apartments occupied, then that would allow me to

11· ·go in and check the building.

12· · · · · · ·THE COMMISSIONER:· It's not clear to me.

13· ·It says -- does the 50% apply to multi-residential

14· ·properties with more than three units?

15· · · · · · ·THE WITNESS:· Yes.

16· · · · · · ·THE COMMISSIONER:· It looks like they're

17· ·stand-alone.· In other words, vacant buildings.

18· ·The multi-unit buildings having vacancy of 50% or

19· ·more, and all commercial properties.· And then all

20· ·multi-residential properties having more than

21· ·three units.· Does the 50% apply to that last

22· ·category?

23· · · · · · ·THE WITNESS:· Yes.

24· · · · · · ·THE COMMISSIONER:· The way it's

25· ·constructed I think is --

·1· · · · · · ·MS. EFFENDI:· It might be a bit

·2· ·confusing.

·3· · · · · · ·BY MS. EFFENDI:

·4· · · · · · ·Q.· What was your practice, Mr.

·5· ·Clouthier?· Was the practice that the 50% applied

·6· ·to both commercial and multi-residential

·7· ·properties?

·8· · · · · · ·A.· Yes.

·9· · · · · · ·Q.· Okay.· So we'll go by that.· And I'm

10· ·sure Mr. Allard will be explain to the

11· ·Commissioner if it's any different.

12· · · · · · ·THE COMMISSIONER:· The all appears to be

13· ·disjunctive and that would seem to be a

14· ·stand-alone category, but I understand your

15· ·understanding of it.

16· · · · · · ·BY MS. EFFENDI:

17· · · · · · ·Q.· I believe this was drafted by Mr.

18· ·Allard so I'm sure we'll be able to ask him that

19· ·question.

20· · · · · · ·Now in terms of commercial buildings how

21· ·did you determine the 50%.· Was it in terms of

22· ·square footage, or units?· How was the 50% vacancy

23· ·determined?

24· · · · · · ·A.· I actually don't recall that.· I

25· ·know that I personally don't know if I dealt with

·1· ·any commercial buildings.· I did deal with a lot

·2· ·of apartment buildings in town.

·3· · · · · · ·Q.· So you would have conducted an

·4· ·inspection under this new pro-active program?

·5· · · · · · ·A.· Yes.

·6· · · · · · ·Q.· Did you under this new program find

·7· ·any violation of the by-law?· Do you recall

·8· ·conducting inspections and finding violations?

·9· · · · · · ·A.· Yes.

10· · · · · · ·Q.· Do you recall issuing any notices or

11· ·orders under this new program?

12· · · · · · ·A.· Yes.

13· · · · · · ·Q.· Do you recall issuing any notices or

14· ·orders to commercial buildings, and I say -- I ask

15· ·this question subject to the answer you've just

16· ·given me here.

17· · · · · · ·A.· Yeah, I don't recall.· It's possible

18· ·that I did give something to a commercial building

19· ·or two, but I mainly recall it had to do with

20· ·residential buildings.

21· · · · · · ·Q.· Okay, fair enough.· Is this

22· ·pro-active inspection program, sir, still in place

23· ·at the City?

24· · · · · · ·A.· It's possible that it's in place.· I

25· ·know I haven't dealt with it in the last while and

·1· ·that might be because it was dealt with.· I know

·2· ·we worked on it for a couple of years ongoing and

·3· ·we got a lot of it tidied up.· So it's possible

·4· ·that it's complete at the moment.

·5· · · · · · ·Q.· In the sense that all of the

·6· ·buildings that would fall within this criteria

·7· ·have been repaired or no longer fall under this

·8· ·program?

·9· · · · · · ·A.· Yes, that's correct.

10· · · · · · ·THE COMMISSIONER:· But to your knowledge

11· ·the policy was not formally rescinded?

12· · · · · · ·THE WITNESS:· No, not aware of that.

13· ·No.

14· · · · · · ·BY MS. EFFENDI:

15· · · · · · ·Q.· So if a building were to fall under

16· ·these criteria you would still be able and have

17· ·the authority to go in and conduct an inspection?

18· · · · · · ·A.· Yes, I would.· Yeah.

19· · · · · · ·Q.· Now, just generally I gather from

20· ·your answers to me right now you have conducted

21· ·several inspections under the Property Standards

22· ·By-Law, generally?

23· · · · · · ·A.· Yes.

24· · · · · · ·Q.· And have you issued notices and

25· ·orders under the Property Standards By-Law

·1· ·generally in terms of commercial buildings, not

·2· ·necessarily for this pro-active program?

·3· · · · · · ·A.· I may have, I'm not sure.

·4· · · · · · ·Q.· Okay.· And have you ever been

·5· ·involved, sir, in a prosecution under the Property

·6· ·Standards By-Law?

·7· · · · · · ·A.· Yes.

·8· · · · · · ·Q.· And were those residential or

·9· ·commercial properties?

10· · · · · · ·A.· There was quite a few residential.

11· ·I don't recall a commercial one.

12· · · · · · ·Q.· Okay.· I'd like now to turn our

13· ·attention to the mall and your knowledge of what

14· ·was going on at the mall when you first started.

15· ·So when you started working at the City as a

16· ·Building Inspector you moved to Elliot Lake.· And

17· ·what was your understanding of the state of the

18· ·mall with respect to leaks?

19· · · · · · ·A.· I wasn't aware of any.

20· · · · · · ·Q.· Okay.· When you started working I

21· ·think in 2004 I think Retirement Living was the

22· ·owner of the mall, and then in August of 2005

23· ·Eastwood Inc. became the owner of the mall, is

24· ·that your understanding?

25· · · · · · ·A.· I believe so, yes.

·1· · · · · · ·Q.· Did you visit the mall as a patron

·2· ·yourself personally?

·3· · · · · · ·A.· I believe shortly after I came to

·4· ·town in 2004, in September of 2004 I went in to

·5· ·the library once.

·6· · · · · · ·Q.· Okay.· And do you recall when you

·7· ·went into the library what you would have seen?

·8· · · · · · ·A.· It looked normal to me at that one

·9· ·time.

10· · · · · · ·Q.· And did you go in there just to

11· ·introduce yourself?· Do you remember the

12· ·circumstances of you going there?

13· · · · · · ·A.· I think I was just checking out

14· ·things that were in the City.· I'd just moved to

15· ·town.

16· · · · · · ·THE COMMISSIONER:· What month was that

17· ·that you went into the library.

18· · · · · · ·THE WITNESS:· It would have been

19· ·September of 2004.

20· · · · · · ·BY MS. EFFENDI:

21· · · · · · ·Q.· And now I'd like to turn our

22· ·attention to the inspections that you would have

23· ·conducted at the mall.· And let's start first with

24· ·the first inspection.· Do you remember the first

25· ·time that you would have conducted an inspection

·1· ·at the mall?

·2· · · · · · ·A.· I believe it was December of 2004.

·3· ·And I believe it was in the food court.

·4· · · · · · ·Q.· Okay.· And I think you're right.

·5· · · · · · ·MS. EFFENDI:· And, Ms. Kuka, if we could

·6· ·pull Exhibit No. 3297.

·7· · · · · · ·BY MS. EFFENDI:

·8· · · · · · ·Q.· And that, sir, is at the volume 5 in

·9· ·front of you.· And it will be tab 54.· So this,

10· ·sir -- and the version on the screen might be

11· ·better than the one on paper.· But this is an

12· ·inspection report.· And at the top it -- and I

13· ·think it's your name there on the top corner,

14· ·Inspector?

15· · · · · · ·A.· Yes.

16· · · · · · ·Q.· And it's dated December 8, 2004.

17· · · · · · ·MS. EFFENDI:· And just so you know, Mr.

18· ·Commissioner, this is actually the first

19· ·inspection report that we were provided by the

20· ·City of Elliot Lake that Mr. Clouthier would have

21· ·authored.

22· · · · · · ·BY MS. EFFENDI:

23· · · · · · ·Q.· So I think that that confirms your

24· ·recollection of the first inspection you would

25· ·have conducted.

·1· · · · · · ·And we see that at the left it says,

·2· ·"OWNER Quinte", and then the street address is

·3· ·actually the address of the mall.

·4· · · · · · ·A.· That's right.

·5· · · · · · ·Q.· I understand that Mr. Quinte owned a

·6· ·restaurant in the food court, is that correct?

·7· · · · · · ·A.· Yes.

·8· · · · · · ·Q.· So this inspection that you would

·9· ·have conducted I see that it talks about wire for

10· ·paneling, cement board.· Am I right that this

11· ·would have been related to a building permit that

12· ·would have been issued by the City?

13· · · · · · ·A.· Yes.

14· · · · · · ·Q.· So this was not related to a

15· ·complaint that would have been filed with the

16· ·City?

17· · · · · · ·A.· No.

18· · · · · · ·Q.· Okay.· And before going any further,

19· ·do you recall whether in December of 2004 when you

20· ·went and visited Mr. Quinte's property whether you

21· ·noticed any evidence of leaks in the mall?

22· · · · · · ·A.· I don't recall, no.

23· · · · · · ·Q.· And we see here of course that

24· ·during inspections, it appears from this one in

25· ·any event, that you did take notes.· Was that a

·1· ·common practice of yours to take notes when you

·2· ·would conduct inspections?

·3· · · · · · ·A.· Yeah, always.· If you have an

·4· ·inspection you have to make out an inspection

·5· ·report.· And bring the file and you go there and

·6· ·make sure that it complies with approved plans and

·7· ·the Ontario Building Code.· And you do take notes

·8· ·and that goes in the file.

·9· · · · · · ·Q.· And is it also your practice to take

10· ·pictures during your inspections?

11· · · · · · ·A.· Normally.

12· · · · · · ·Q.· So I gather that at the time you did

13· ·not see any buckets or tarps in relation to leaks?

14· · · · · · ·A.· No, I don't recall seeing any at

15· ·that time, no.

16· · · · · · ·Q.· Okay.· So now let's jump ahead.· In

17· ·2005 you also conducted several inspections at the

18· ·mall.· Do you recall that, sir?

19· · · · · · ·A.· I recall going there I think every

20· ·year for some inspections, yes.

21· · · · · · ·Q.· Okay.· Let's take a look at another

22· ·one that you conducted and this one is Exhibit No.

23· ·3334, and you'll find that in your volume 6.· And

24· ·that will be tab 160.· And we see here, sir, that

25· ·again that's your name at the top of the

·1· ·inspection report?

·2· · · · · · ·A.· Yes.

·3· · · · · · ·Q.· And it's dated December 5th, 2005,

·4· ·almost a year later?

·5· · · · · · ·A.· Yes.

·6· · · · · · ·Q.· And it's indicated that the owner is

·7· ·B. Nazarian.· And if we take a look at your notes

·8· ·it says, "Renovation between Peachy's and Shoppers

·9· ·Drugmart."· Again, sir, am I right that this would

10· ·have been in relation to a building permit issued

11· ·by the City for renovation?

12· · · · · · ·A.· Yes.

13· · · · · · ·Q.· So this wasn't related to leagues or

14· ·a complaint of leaks?

15· · · · · · ·A.· No.

16· · · · · · ·Q.· Do you recall whether in 2005 you

17· ·would have seen leaks at the mall?

18· · · · · · ·A.· No.· This inspection is -- I recall

19· ·it because of where the location of it.· It's --

20· ·you can leave City hall out the back door where my

21· ·vehicle would be.· I didn't need my vehicle

22· ·because the mall is next door.· So I would walk

23· ·across the parking lot to a side door and just go

24· ·down that hallway, after you come in the side

25· ·door, and this is the location of this area.

·1· · · · · · ·Q.· So you wouldn't be having to walk

·2· ·across the mall in order to get to that location?

·3· · · · · · ·A.· No.

·4· · · · · · ·Q.· And it also appears if you go, sir,

·5· ·to the next tab in your brief.

·6· · · · · · ·MS. EFFENDI:· And that, Ms. Kuka, is

·7· ·3335.

·8· · · · · · ·BY MS. EFFENDI:

·9· · · · · · ·Q.· That a few days later you conducted

10· ·another inspection at the same location it

11· ·appears.· And then you indicated that the premises

12· ·were in accordance to all Building Codes.· Again,

13· ·sir, would you have taken the same path to get to

14· ·that location in order to conduct your inspection?

15· · · · · · ·A.· Yes.

16· · · · · · ·Q.· So do you recall seeing any leaks a

17· ·few days later?

18· · · · · · ·A.· No.

19· · · · · · ·Q.· If we now go to tab 164 of your

20· ·brief, and that's Exhibit No. 3337.· And that is

21· ·several weeks later you appear to have conducted

22· ·an inspection at Mr. Quinte's property.

23· · · · · · ·A.· Yes.

24· · · · · · ·Q.· In the mall again.· And again am I

25· ·right that this would have been in relation to a

·1· ·building permit issued by the City for renovation

·2· ·at that particular location?

·3· · · · · · ·A.· That's correct.

·4· · · · · · ·Q.· And do you recall seeing any leaks a

·5· ·few weeks later when you went to this inspection?

·6· · · · · · ·A.· No, I did not.· I again it would

·7· ·have been through the same side door, walking

·8· ·probably less than a hundred feet, maybe more like

·9· ·50 feet from that door there's an escalator.· You

10· ·go right up the escalator and at the top to the

11· ·left is where the location of this restaurant

12· ·would be.· And at that time I didn't see anything.

13· · · · · · ·Q.· Okay.· Now I'd like to jump in time

14· ·-- we were just looking at 2005 actually.· Just to

15· ·bring your mind back to the period of 2005.· I

16· ·understand that -- and we'll come to that in a

17· ·moment, but you conducted an inspection with

18· ·respect to leaks in October of 2006, is that

19· ·correct?

20· · · · · · ·A.· October of 2006, that's correct.

21· · · · · · ·Q.· Okay.· So let's go back now -- the

22· ·period of 12 months prior to that October of 2006.

23· ·Were you aware, sir, that prior to October 2006,

24· ·there were leaks at the library that is located in

25· ·the mall?

·1· · · · · · ·A.· I was not made ware of that.

·2· · · · · · ·Q.· Were you aware that there were leaks

·3· ·at other tenant locations in the mall?

·4· · · · · · ·A.· No, I was not made aware of that.

·5· · · · · · ·Q.· Okay.· Were you ever sent any

·6· ·correspondence, e-mails or letters regarding the

·7· ·leaks and the concerns that the library staff had

·8· ·with respect to the roof leaks prior to 2006?

·9· · · · · · ·A.· No.

10· · · · · · ·Q.· Were you aware, sir, that the

11· ·library suffered very bad leaks in April and May

12· ·2005?

13· · · · · · ·A.· No.

14· · · · · · ·MS. EFFENDI:· We have in our record, Mr.

15· ·Commissioner, dozens of communications between

16· ·various members of City staff and the library.

17· · · · · · ·BY MS. EFFENDI:

18· · · · · · ·Q.· I'm not going to take you to all of

19· ·those, Mr. Clouthier, but I'm going to show you a

20· ·few of them and you can advise me whether or not

21· ·you've ever seen those before in terms of them

22· ·ever being sent to you?

23· · · · · · ·A.· Okay.

24· · · · · · ·Q.· So let's start with -- in your

25· ·volume 6, if you could have that in front of you,

·1· ·it would with at tab 76.

·2· · · · · · ·MS. EFFENDI:· And, Ms. Kuka, that is

·3· ·Exhibit No. 11-82.

·4· · · · · · ·BY MS. EFFENDI:

·5· · · · · · ·Q.· You'll see, sir, that this is an

·6· ·e-mail from Ms. Suzanne Morin to members of

·7· ·Council on April 27th, 2005.· And the subject of

·8· ·the e-mail is "Health and Safety Concerns re.

·9· ·Library."· And I don't want to read the entire

10· ·e-mail, but Ms. Morin is basically expressing her

11· ·concerns in terms of the water damage experienced

12· ·by the library, and her concerns in terms of

13· ·health and safety of the staff.

14· · · · · · ·Sir, were you aware -- first of all let

15· ·me start with this.· Do you know Ms. Morin?

16· · · · · · ·A.· Yes.

17· · · · · · ·Q.· Were you aware that Ms. Morin had

18· ·made a complaint to the Human Resources Department

19· ·in April of 2005 as a result of the leaks in the

20· ·library?

21· · · · · · ·A.· No.

22· · · · · · ·Q.· Had you ever seen this document,

23· ·sir, before Commission Counsel sat with you a few

24· ·weeks ago?

25· · · · · · ·A.· No.

·1· · · · · · ·Q.· And if we turn now to tab 80 of your

·2· ·brief, sir, and that's Exhibit No. 11-14.· And

·3· ·you'll see that this is a letter that is authored

·4· ·by Ms. Judith Menzes, who is the Chair of the

·5· ·Public Library Board.· And the recipient of the

·6· ·letter is Mr. Troy Speck, who was the CAO at the

·7· ·time.· And in her letter Ms. Menzes outlines her

·8· ·concerns with respect to the issue of leaks that

·9· ·the library has suffered from.· And speaks about

10· ·buckets and tiles and books that have been

11· ·affected.· And also speaks about the measures that

12· ·have been taken by the library, such as putting it

13· ·tarps on the books.· Have you ever seen this

14· ·letter before, sir?

15· · · · · · ·A.· No, I haven't.

16· · · · · · ·Q.· Okay.· And if this letter had been

17· ·sent to the Building Department as is what would

18· ·you have done?

19· · · · · · ·A.· I guess if it was received as a

20· ·complaint it would have been written up as a

21· ·complaint and we would have investigated it.

22· · · · · · ·Q.· If you now turn to tab 82, and

23· ·that's Exhibit No. 11-84.

24· · · · · · ·MS. EFFENDI:· Again I don't propose, Mr.

25· ·Commissioner, to read this entire string of

·1· ·e-mails.

·2· · · · · · ·BY MS. EFFENDI:

·3· · · · · · ·Q.· I believe, Mr. Clouthier, you had a

·4· ·chance to look at this e-mail before?· When we met

·5· ·with you for an interview prior to your testimony.

·6· · · · · · ·A.· That's correct, yes.

·7· · · · · · ·Q.· But you had never received a copy of

·8· ·this e-mail before we met with you?

·9· · · · · · ·A.· No.

10· · · · · · ·Q.· And this e-mail as you see here is a

11· ·different communication between Mr. Speck, Ms.

12· ·Fazekas, as well as members of Council,

13· ·specifically Councillor Cathy McTaggart with

14· ·respect to leaks at the library.· And those

15· ·e-mails were exchanged around the period of April

16· ·27, 28 of 2005 and they are in respect of leaks.

17· ·Again, sir, you have never seen this e-mail

18· ·before?

19· · · · · · ·A.· No, I never did, no.

20· · · · · · ·Q.· And if we turn to tab 88, sir,

21· ·you'll see, my mistake here.· It's Exhibit No.

22· ·11-88 but it's actually tab 89 of your brief.

23· ·You'll see that this is actually a Ministry of

24· ·Labour report that is dated May 3rd, 2005, so a

25· ·few days after those exchange of e-mails we just

·1· ·looked at.

·2· · · · · · ·Were you aware, sir, that the Ministry

·3· ·of Labour had been called in to the library to

·4· ·conduct air quality testing because of the leaks

·5· ·in the roof?

·6· · · · · · ·A.· No, I was not made aware of that.

·7· · · · · · ·Q.· Now, if we go to tab 104.· And

·8· ·that's Exhibit No. 11-95.· You'll see in the

·9· ·middle in of the page here --

10· · · · · · ·MS. EFFENDI:· If you can focus, Ms.

11· ·Kuka, on paragraph 2.

12· · · · · · ·BY MS. EFFENDI:

13· · · · · · ·Q.· And these are actually minutes of a

14· ·meeting of a Health and Safety Committee at the

15· ·City.· Had you ever sat on this committee, sir?

16· · · · · · ·A.· No, I haven't.

17· · · · · · ·Q.· You're familiar with its existence

18· ·at the City?

19· · · · · · ·A.· Yes.

20· · · · · · ·Q.· Okay.· So this was minutes of a

21· ·meeting in May of 2005, again a few days later.

22· ·And you'll see that in that paragraph 2 it

23· ·indicates that mold testing was conducted at

24· ·library and that mould was found in the drywall

25· ·paper as well as in the carpet.· Were you aware of

·1· ·that at the time, sir?

·2· · · · · · ·A.· No, I wasn't aware of it.

·3· · · · · · ·Q.· So no one ever informed the Building

·4· ·Department of these findings?

·5· · · · · · ·A.· Nobody ever informed me.

·6· · · · · · ·Q.· Are you aware of whether or not

·7· ·anyone else at the Building Department knew about

·8· ·this?

·9· · · · · · ·A.· Not that I'm aware of, no.

10· · · · · · ·Q.· Okay.· If we now turn to tab 114,

11· ·that's Exhibit No. 11-100.· This is a letter from

12· ·Mr. Troy Speck to Mr. Richard Kennealy, the

13· ·general manager, dated June 1, 2005.· And you

14· ·confirmed to me earlier that in 2005 Retirement

15· ·Living -- early 2005 anyway Retirement Living

16· ·still owned the mall?

17· · · · · · ·A.· That's correct.

18· · · · · · ·Q.· And you'll see again, I don't want

19· ·to go through the whole thing, but Mr. Speck

20· ·outlines for Mr. Kennealy several ongoing problems

21· ·that the library has experienced as a result of

22· ·what he describes as severe leaks from the roof

23· ·since the library relocated to the mall in the

24· ·early 1990's.

25· · · · · · ·Were you aware, sir, that Mr. Speck had

·1· ·sent this letter to Mr. Kennealy about his

·2· ·concerns with respect to the leaks in the roof?

·3· · · · · · ·A.· No, I wasn't aware.

·4· · · · · · ·Q.· Did Mr. Speck ever advise you during

·5· ·his tenure about leaks in the library?

·6· · · · · · ·A.· No.

·7· · · · · · ·Q.· Do you know whether or not he ever

·8· ·advised the Building Department?

·9· · · · · · ·A.· I'm not aware, no.

10· · · · · · ·Q.· Okay.· Did Mr. Speck ever ask you to

11· ·conduct an inspection of the library because of

12· ·leaks?

13· · · · · · ·A.· No.

14· · · · · · ·Q.· Did anyone at the City ever ask you

15· ·not to conduct an inspection at the mall with

16· ·respect to leaks?

17· · · · · · ·A.· No.

18· · · · · · ·Q.· Did anyone ever ask you to be

19· ·careful when conducting inspections at the mall,

20· ·or to make sure that no notices were issued with

21· ·respect to leaks against the mall?

22· · · · · · ·A.· No.

23· · · · · · ·MS. EFFENDI:· If we could go, Ms. Kuka,

24· ·to Exhibit No. 11-6.

25

·1· · · · · · ·BY MS. EFFENDI:

·2· · · · · · ·Q.· That's tab 163 of your volume, sir.

·3· ·And this, sir, is a document entitled "Procedure

·4· ·for dealing with leaks in the Library".· It was

·5· ·revised on December 15, 2005.· Am I right that you

·6· ·have never seen this document before?

·7· · · · · · ·A.· No, I have never seen it.

·8· · · · · · ·Q.· So were you aware, sir, that the

·9· ·library had actually established a procedure that

10· ·they followed on a daily basis in order to deal

11· ·with leaks?

12· · · · · · ·A.· No, I had no contact with them.

13· · · · · · ·Q.· So I gather, sir, from your answers

14· ·that during the period prior to October 2006 you

15· ·were never provided with any communication, or any

16· ·complaints with respect to leaks at the library,

17· ·is that fair?

18· · · · · · ·A.· That's correct.

19· · · · · · ·Q.· If someone had made you aware of

20· ·these communications, and we've only seen a sample

21· ·of them, what would you have done?

22· · · · · · ·A.· Well again if the complaint wouldn't

23· ·have came to me, but if the complaint came in and

24· ·we were to investigate it and it fell under the

25· ·Property Standards By-Law or Building Code then it

·1· ·would have been enforced.

·2· · · · · · ·Q.· When you say "enforced" do you mean

·3· ·that you would have gone ahead if you felt there

·4· ·was a violation then to issue a notice and an

·5· ·order.

·6· · · · · · ·A.· That's correct.

·7· · · · · · ·Q.· And is it fair to say, sir, that say

·8· ·leaks in the roof, and they're described by Mr.

·9· ·Speck in one of the letters we looked at as

10· ·"severe" leaks that have been happening since

11· ·1990's, are actually a violation of that

12· ·provision, section 5 that we looked at in terms of

13· ·watertightness?

14· · · · · · ·A.· Yes.

15· · · · · · ·Q.· Okay.· So is it fair to say that if

16· ·you had known about these leaks that it would have

17· ·caused you concern?

18· · · · · · ·A.· Yeah, if I would have been aware of

19· ·it yes.

20· · · · · · ·Q.· Now I would like to turn our

21· ·attention to the period of 2006.· So the few

22· ·months prior to you being approached to conduct an

23· ·inspection, and we'll hear about that, and your

24· ·inspection.

25· · · · · · ·So if we can now -- if you could take

·1· ·volume 7, sir, and it will be tab 16 of volume 7.

·2· · · · · · ·MS. EFFENDI:· And, Ms. Kuka, that's

·3· ·Exhibit No. 1699.

·4· · · · · · ·BY MS. EFFENDI:

·5· · · · · · ·Q.· Do you have that document in front

·6· ·of you, sir?

·7· · · · · · ·A.· Yes.

·8· · · · · · ·Q.· You'll see that this is an exchange

·9· ·of e-mails between various members of City

10· ·Council, specifically -- it looks like all members

11· ·of City Council were copied, but there is an

12· ·exchange specifically between Councillor McTaggart

13· ·and Councillor Reinhard.· Have you ever seen this

14· ·document before, sir?

15· · · · · · ·A.· No.

16· · · · · · ·Q.· And again if you take a look at it I

17· ·believe that you were given an opportunity to take

18· ·a look at it before now.· You'll see that Ms.

19· ·McTaggart raises various concerns about what were

20· ·expressed at a meeting of the Mall Merchants

21· ·Association of the mall with respect to ongoing

22· ·leaks occurring because of the roof, as well as

23· ·deterioration of the mall.· Were you aware of

24· ·these concerns, sir, in -- and you'll see that

25· ·that is dated June 10, 2006.· Were you aware of

·1· ·these concerns in June 2006?

·2· · · · · · ·A.· No.

·3· · · · · · ·Q.· If you turn to the next tab, tab 17,

·4· ·and that is Exhibit No. 11-113.· And these are

·5· ·e-mails exchanged between Ms. Morin, Ms.

·6· ·McTaggart, forwarded along by Ms. McTaggart to

·7· ·City Council on June 12, 2006.· And in this e-mail

·8· ·if we take a look at the top you'll see that Mr.

·9· ·Troy Speck is copied on this e-mail.· Am I right,

10· ·sir, that you have never seen this e-mail before?

11· · · · · · ·A.· No, I haven't.

12· · · · · · ·Q.· And if we take a look you'll see in

13· ·the third paragraph of her e-mail Ms. McTaggart

14· ·says.

15· · · · · · · · ·"If you recall, last Thursday evening,

16· · · · · · ·June 8th, we had quite a storm and here is

17· · · · · · ·the resulting e-mail regarding the damage

18· · · · · · ·to the Library.· Scot, [sic] I guess all

19· · · · · · ·you have to do is walk across the hall and

20· · · · · · ·take a look at the damage.· Perhaps you

21· · · · · · ·have already done so today."

22· · · · · · ·Were you aware of these various

23· ·communications between members of City Council

24· ·about the leaks in the library, sir?

25· · · · · · ·A.· No, I wasn't aware.

·1· · · · · · ·Q.· As far as you know were other

·2· ·members of the Council, like the CBO, aware of

·3· ·these communications?

·4· · · · · · ·A.· I'm not sure if they were.· I don't

·5· ·believe they were.

·6· · · · · · ·Q.· Did any of them mention that they

·7· ·had been forward e-mails about concerns in terms

·8· ·of leaks at the library?

·9· · · · · · ·A.· No.

10· · · · · · ·Q.· If you turn now to tab 19 of your

11· ·brief, that's Exhibit No. 3348.· This is an e-mail

12· ·from Ms. Suzanne Morin, who was the Chief

13· ·Librarian, to Ms. McTaggart.· And in her e-mail

14· ·Ms. Morin says the following.

15· · · · · · · · · "Hi Cathy:· wanted to keep you up to

16· · · · · · ·date on the library situation.

17· · · · · · · · · Dan Bouffard, mall mgr., was in this

18· · · · · · ·afternoon to tell me they are just

19· · · · · · ·finishing up the temp. fix of the roof.

20· · · · · · ·He has someone coming tomorrow to have a

21· · · · · · ·look at the roof and especially the

22· · · · · · ·problems with the library.· He also was

23· · · · · · ·inquiring about how much extra space the

24· · · · · · ·library would require if we choose to stay

25· · · · · · ·at the mall.· I told him that Barb

·1· · · · · · ·mentioned approx. 1,500 square feet more.

·2· · · · · · ·He's anticipating that the situation with

·3· · · · · · ·the roof should be fixed once and for all.

·4· · · · · · ·We'll see next spring."

·5· ·And then she goes on to indicate that she's

·6· ·"...purchased some ceiling tiles to replace the

·7· ·damaged tiles in the non-fiction area.."· And

·8· ·she's contacted the mall to see if she can h ave

·9· ·them replaced.

10· · · · · · ·So in the second paragraph she indicates

11· ·that she has bought replacement tiles and she's

12· ·asked the maintenance staff at the mall if they

13· ·can replace them.· And then finally she has also

14· ·indicated that the Health and Safety Committee was

15· ·into the library the previous week to conduct an

16· ·inspection.

17· · · · · · ·If we go back to the first part of this

18· ·e-mail, Mr. Clouthier, you'll see that it

19· ·indicates that the mall manager was just finishing

20· ·up fixing the roof.· Were you aware of repairs

21· ·being conducted by the mall owner on the roof of

22· ·the mall --

23· · · · · · ·A.· No, I wasn't.

24· · · · · · ·Q.· -- at that time?

25· · · · · · ·A.· No, I wasn't.

·1· · · · · · ·Q.· Was a building permit issued by the

·2· ·City for the repairs that were conducted on the

·3· ·roof in June 2006?

·4· · · · · · ·A.· No.

·5· · · · · · ·Q.· Would a building permit have been

·6· ·required for those repairs?

·7· · · · · · ·A.· Depending on what they were doing.

·8· ·If they were -- yeah.· Generally speaking if they

·9· ·were repairing the roof deck, the roof of the

10· ·mall, they would need a building permit that

11· ·required an architect and engineer to be involved.

12· · · · · · ·Q.· And would a building permit have

13· ·been required, for example, if the owner had

14· ·decided to replace the whole expansion joint?

15· · · · · · ·A.· I would think so, yes.

16· · · · · · ·Q.· Okay.· I'd like now to turn your

17· ·attention to tab 26 of your volume.· And that is

18· ·Exhibit No. 1698.· You'll see that this is an

19· ·e-mail from Councillor McTaggart to members of

20· ·City Council, including some City staff.· You see

21· ·here Dan Gagnon, Mike Perkins, Paul Officer,

22· ·Leslie Sprague.· And this is an email dated August

23· ·25th, 2006.· And she's forwarding to them an

24· ·e-mail from Ms. Moring of earlier that morning.

25· ·And you'll see that in her e-mail, if you go at

·1· ·the bottom of the page, Ms. Morin reports a

·2· ·discussion that she's had with the mall manager

·3· ·Tom Turner.· And she says that:

·4· · · · · · · · · "Tom has been in to see me several

·5· · · · · · ·times in the last few weeks to let me know

·6· · · · · · ·that they will be testing a new sealant

·7· · · · · · ·product from Dell Corning.· Dell Corning

·8· · · · · · ·will only guarantee their product if it's

·9· · · · · · ·installed by one of their trained

10· · · · · · ·employees."

11· · · · · · ·Were you aware, sir, of these

12· ·communications between Ms. Morin and Ms. McTaggart

13· ·and then on to City Council.

14· · · · · · ·A.· No, I wasn't.

15· · · · · · ·Q.· If we can go back to the top here

16· ·you'll see that one individual that I forgot to

17· ·mention that was copied on this e-mail.· You'll

18· ·see at the top there Mr. Allard is copied.· Do you

19· ·see his name?· Right above Dan Gagnon?

20· · · · · · ·A.· Yes, I do.

21· · · · · · ·Q.· Okay.· And did Mr. Allard tell you

22· ·about this e-mail?· About this communication that

23· ·he received?

24· · · · · · ·A.· I don't believe he did.

25· · · · · · ·Q.· Okay.· So he wouldn't have asked you

·1· ·to conduct an inspection at the mall with respect

·2· ·to these repairs that were being conducted?

·3· · · · · · ·A.· He didn't.

·4· · · · · · ·Q.· Okay.· So were you aware of these

·5· ·repairs in August of 2006?

·6· · · · · · ·A.· No, I wasn't.

·7· · · · · · ·Q.· Okay.· Again I gather from the

·8· ·previous answer that you've given me that in order

·9· ·to conduct these repairs the owner of the mall

10· ·would have had to get a building permit?

11· · · · · · ·A.· That's correct.

12· · · · · · ·Q.· If you had received this e-mail

13· ·knowing that no building permit had been issued,

14· ·would you have been concerned?

15· · · · · · ·A.· I guess you would have to have more

16· ·information on it.· The reason why someone might

17· ·have gotten this information and not have been

18· ·concerned -- I guess it would depend.· If they

19· ·were trying to just seal surface cracks with

20· ·silicone or caulking, or something and that

21· ·nature, it was questionable whether you would need

22· ·a permit.· But if you were trying to seal a lot of

23· ·leaks over a large roof area then it would have to

24· ·be done in a different way than this.· It would

25· ·need engineers and architects and require a

·1· ·permit, so on and so forth.

·2· · · · · · ·Q.· So is it fair to say that if you had

·3· ·received this e-mail that you would have

·4· ·investigated the matter further?

·5· · · · · · ·A.· Well my supervisor it looks -- did

·6· ·get this information so I would take his

·7· ·direction.

·8· · · · · · ·Q.· Okay.· So if you had received this

·9· ·e-mail then you would have gone to Mr. Allard to

10· ·ask him about it?· To see what information he knew

11· ·about these repairs?

12· · · · · · ·A.· Yeah, I probably -- I probably would

13· ·want to know if I got it what exactly what they

14· ·were doing up there.

15· · · · · · ·Q.· All right, fair enough.· And just

16· ·jumping ahead here on the chronology, and you'll

17· ·see shortly why I'm doing that.· If you could go

18· ·to tab 60 of your brief, and that is Exhibit No.

19· ·11-19.

20· · · · · · ·You'll see as I said I jumped a bit

21· ·ahead in time.· These are e-mails exchanged

22· ·between Ms. McTaggart and Tom Derreck who was the

23· ·CAO, is that correct?

24· · · · · · ·A.· Yes.

25· · · · · · ·Q.· And those are dated October 19.· And

·1· ·you'll see that there's also October 21st there.

·2· ·And if we go to the e-mail of Ms. McTaggart just

·3· ·in the middle there you'll see that she's writing

·4· ·to Mr. Derreck and she says.

·5· · · · · · · · · "Hi Tom:· This is the e-mail that I

·6· · · · · · ·delivered to you this afternoon because I

·7· · · · · · ·could not get it to go through before I

·8· · · · · · ·left for the By-Law meeting.

·9· · · · · · · · · Tom:· I read with interest your

10· · · · · · ·comment that 'No blame is being laid here,

11· · · · · · ·but the building department's not in the

12· · · · · · ·picture - and apparently unaware of the

13· · · · · · ·leakage problem - suggests a need for a

14· · · · · · ·little tightening up in the area of

15· · · · · · ·communications...which is happening as we

16· · · · · · ·go along.'

17· · · · · · · · · ·As the appointed representative from

18· · · · · · ·Council on the library Board, I forwarded

19· · · · · · ·every e-mail that I received from Sue

20· · · · · · ·Morin about the Library leaks to Council

21· · · · · · ·to Syl Allard (Bldg Dept.) and Dan Gagnon,

22· · · · · · ·and even to Rob de Bortoli and Paul

23· · · · · · ·Officer and Lesley Sprague, simply because

24· · · · · · ·they are all usually at Council meetings.

25· · · · · · · · · Here is the e-mail that I forwarded

·1· · · · · · ·to Syl Allard on August 25, 2006, which

·2· · · · · · ·definitely shows that the Building

·3· · · · · · ·Department should have been aware of the

·4· · · · · · ·leakage problem."

·5· · · · · · ·MS. EFFENDI:· And you'll see that if we

·6· ·turn to the next page, Ms. Kuka.

·7· · · · · · ·BY MS. EFFENDI:

·8· · · · · · ·Q.· This is the e-mail we just looked at

·9· ·a few seconds ago, that August 2006 e-mail where

10· ·Ms. Morin speaks of those repairs being conducted

11· ·with the new sealant product.

12· · · · · · ·And I'm just interest about the comment

13· ·of Ms. McTaggart here that she had forward all

14· ·these e-mails about the library leaks to Mr.

15· ·Allard and the Building Department.· Again just to

16· ·confirm, my understanding from your evidence is

17· ·that prior to October 2006 you had not received

18· ·any communication or complaints about leaks at the

19· ·library?

20· · · · · · ·A.· That's correct.

21· · · · · · ·Q.· Okay.

22· · · · · · ·A.· I don't believe Mr. Allard had got

23· ·one prior to this either, but I can't answer for

24· ·him.

25· · · · · · ·Q.· Well I'm sure we'll be able to ask

·1· ·him that question directly.

·2· · · · · · ·MS. EFFENDI:· If we go back, Ms. Kuka,

·3· ·to the first page of this document.· And go back

·4· ·to where we were reading here.

·5· · · · · · ·BY MS. EFFENDI:

·6· · · · · · ·Q.· I'd like to keep on reading, Mr.

·7· ·Clouthier, the rest of the e-mail of Ms.

·8· ·McTaggart.· She goes on to say:

·9· · · · · · · · · "Tom, I not only forward e-mails, but

10· · · · · · ·I speak about the situation of the Library

11· · · · · · ·to everyone all the time.· You have my CD

12· · · · · · ·from last March 2005 for heavens sake

13· · · · · · ·showing the damage to the Library.· The

14· · · · · · ·building department was definitely aware

15· · · · · · ·of the problem.· Why they have not been

16· · · · · · ·involved up until now, I have no idea.· In

17· · · · · · ·all fairness to Syl Allard, for whom I

18· · · · · · ·have the utmost respect, would Troy Speck

19· · · · · · ·have had to request them to do an

20· · · · · · ·inspection?· If that is the case then that

21· · · · · · ·is your answer.· I know exactly how Troy

22· · · · · · ·Speck felt about this whole situation but

23· · · · · · ·I will not put it in writing, but I will

24· · · · · · ·tell you."

25· · · · · · ·I'm interested about the comment that

·1· ·Ms. McTaggart here is making about Troy Speck

·2· ·having to have requested an inspection of the

·3· ·Building Department.· In order for the Building

·4· ·Department to conduct an inspection during the

·5· ·tenure of Mr. Speck as CEO did the Building

·6· ·Department need an authorization of Mr. Speck?

·7· · · · · · ·A.· No.

·8· · · · · · ·Q.· And more generally, did the Building

·9· ·Department at any time need authorization of the

10· ·CEO to inspect or issue a notice or an order?

11· · · · · · ·A.· Not as far as I know.

12· · · · · · ·Q.· Okay.· Now I'd like to go back, we

13· ·jumped here a bit ahead.· But I'd like to go back

14· ·in time.· If you go to tab 30, sir, of your brief,

15· ·and that is Exhibit No. 11-4.· And you'll see that

16· ·this is a monthly report that the library -- in

17· ·fact the library prepared monthly reports all the

18· ·time.· And this is the one for September 2006.· I

19· ·gather you have never seen this document before?

20· · · · · · ·A.· No, I haven't.

21· · · · · · ·MS. EFFENDI:· And if we go to the bottom

22· ·of that first page, Ms. Kuka.

23· · · · · · ·BY MS. EFFENDI:

24· · · · · · ·Q.· You'll see under "Physical Plant" it

25· ·says, "September has been a very wet month and the

·1· ·Library continues to experience leaks from the

·2· ·roof."· Is it fair to say, Mr. Clouthier, that you

·3· ·were not aware in September of 2006 that the

·4· ·library was experiencing leaks?

·5· · · · · · ·A.· Not until the following month.

·6· · · · · · ·Q.· Okay.· Now if we could jump to that

·7· ·exact month, October of 2006, which was more of an

·8· ·active month for you with respect to the library,

·9· ·is that fair?

10· · · · · · ·A.· That's the first time we were made

11· ·aware of it, yes.· I was made aware of it, yes.

12· · · · · · ·Q.· Okay.· Now we're going to go to tab

13· ·37, and that is Exhibit No. 11-119.· And here we

14· ·have an e-mail from Ms. Morin to Andrea Leddy and

15· ·Tanya-Lee Williams.· I understand that Ms. Leddy

16· ·and Ms. Williams worked in the Human Resources

17· ·Department at the City?

18· · · · · · ·A.· That's correct.

19· · · · · · ·Q.· And this is an e-mail dated October

20· ·11, 2006.· And it's being sent at -- just a second

21· ·here.· It appears to have been sent in the morning

22· ·of that day.· And Ms. Morin says,

23· · · · · · ·"...as you all know it's raining outside

24· · · · · · ·and also inside the library.· We put up

25· · · · · · ·tarps and buckets yesterday before leaving

·1· · · · · · ·for the day.· We do not have any damaged

·2· · · · · · ·books but I have closed off the area most

·3· · · · · · ·affected by the leaks.· I might turn off

·4· · · · · · ·the lights in that area if water gathers

·5· · · · · · ·in the difusers.[sic]

·6· · · · · · · · Work was supposed to start yesterday on

·7· · · · · · ·the drain pipes above that area but

·8· · · · · · ·unfortunately parts did not come in."

·9· · · · · · ·Again, sir, were you aware on October

10· ·11th, 2006 that the library was experiencing

11· ·leaks?

12· · · · · · ·A.· No, I wasn't.

13· · · · · · ·Q.· And on that issue of -- she mentions

14· ·that work was being done on drain pipes.· Were you

15· ·aware of that?

16· · · · · · ·A.· No, I wasn't.

17· · · · · · ·Q.· And is it fair to assume that if

18· ·work had been done by the owner on drain pipes

19· ·that they would have had to apply for a building

20· ·permit in order to do that work?

21· · · · · · ·A.· It's possible.

22· · · · · · ·Q.· Now, if we go to tab 43, that is

23· ·Exhibit No. 3356.· And I'm interested in the

24· ·bottom e-mail, the one from Ms. Morin that is

25· ·dated October 16 at 12:30.· And you'll see that in

·1· ·this e-mail that Ms. Morin sent to the members of

·2· ·the Library Board, entitled "Library - Physical

·3· ·plant".· She says to them:

·4· · · · · · ·"I wanted to keep you all informed on what

·5· · · · · · ·has taken place at the library since

·6· · · · · · ·Friday.· The library was experiencing

·7· · · · · · ·leaks in the 'drip zone area', the French

·8· · · · · · ·collection area, staff washroom, storage

·9· · · · · · ·room known as the 'old swap shop', A/V

10· · · · · · ·storage room behind circulation desk, and

11· · · · · · ·above the CAP computers.

12· · · · · · ·Tarps had been covering the drip zone area

13· · · · · · ·for quite some time and the area most

14· · · · · · ·affected had been cordoned off to the

15· · · · · · ·public and staff.· We had buckets in the

16· · · · · · ·aisles to catch the leaks but

17· · · · · · ·unfortunately that was still not enough.

18· · · · · · ·Water was accumulating on the floor very

19· · · · · · ·quickly.· We also had 2 air blowers from

20· · · · · · ·Quest to help dry the area."

21· ·And she describes here that at 4:00 p.m. she

22· ·called Ms. Leddy and Mr. Gagnon and that they.

23· ·"...decided that it would be prudent to shut down

24· ·the library on Friday until further notice."

25· · · · · · ·She then goes on to describe visits that

·1· ·she conducted to the library on Saturday, October

·2· ·14th, the next day, and to describe how there was

·3· ·still leakage that was quite heavily happening.

·4· · · · · · ·And then if you keep going you'll see

·5· ·that at the bottom she describes how she visited

·6· ·the library again on October 15th, this time with

·7· ·Ms. Katherine Croxson.· And again you'll see that

·8· ·in her e-mail she indicates that they moved the

·9· ·books from the top and bottom shelves to make sure

10· ·they weren't being caught by water.

11· · · · · · ·In the last line of the e-mail she says

12· ·on October 16th she arrives at the library and

13· ·found that there was a heavy mould smell.· And if

14· ·we go to the next page she indicates that Ms.

15· ·Leddy and Mr. Gagnon came to the library to assess

16· ·the situation and it was decided that an area of

17· ·the library was going to be closed off.· She also

18· ·describes how Mr. Derreck, who was then CAO,

19· ·visited the library and was given a tour as well

20· ·as provided a brief history of the problems that

21· ·the library had experienced.

22· · · · · · ·Again, sir, were you aware on October

23· ·16th of the situation that had transpired in the

24· ·previous days?

25· · · · · · ·A.· No, I wasn't.

·1· · · · · · ·Q.· Were you made aware of these

·2· ·concerns and this information later on October

·3· ·18th when you were asked by, as I understand it,

·4· ·by Mr. Derreck to go and inspect the library?

·5· · · · · · ·A.· Yes.

·6· · · · · · ·Q.· Okay.· So after October 18 when Mr.

·7· ·Derreck, and we'll go to that in a moment, asked

·8· ·you, he described to you what occurred at the

·9· ·library?

10· · · · · · ·A.· That's correct.

11· · · · · · ·Q.· Okay.· If we could go, before going

12· ·to the issue of the inspection, which I'm sure

13· ·you're anxious to describe to the Commissioner,

14· ·but if we can go to tab 41 first.· And that's

15· ·Exhibit No. 11-20.

16· · · · · · ·And you'll see that this is an e-mail

17· ·from Ms. McTaggart where she forwards to City

18· ·Council the e-mail we just looked at a few minutes

19· ·ago.· So that's later in the day, a few hours

20· ·later.· And Ms. McTaggart basically describes her

21· ·visit to the library on Friday.

22· · · · · · ·And I don't want to read the entire

23· ·thing, but I'd like you to draw your attention the

24· ·second paragraph where she says:

25· · · · · · · · · "I myself was at the mall on Saturday

·1· · · · · · ·afternoon between 2:15 p.m. and 3:00 p.m.

·2· · · · · · ·The first place I stopped at was the

·3· · · · · · ·library to peek in through the windows.· I

·4· · · · · · ·also observed that the Bank of Nova Scotia

·5· · · · · · ·has water coming in."

·6· · · · · · ·Were you aware that the Bank of Nova

·7· ·Scotia had leaks in its location?

·8· · · · · · ·A.· Not at that time.

·9· · · · · · ·Q.· And when did you become aware of

10· ·that?

11· · · · · · ·A.· I believe that I went to see the

12· ·library on the 18th late in the afternoon and

13· ·left.· And the next day Mr. Allard and I, on the

14· ·19th, went to the library and a couple of other

15· ·places, one of them was Zellers and another store

16· ·besides that.

17· · · · · · ·Q.· Okay.· So would it have been at that

18· ·particular time on October 19th that you would

19· ·have been made aware that there were leaks at the

20· ·Bank of Nova Scotia?

21· · · · · · ·A.· I might have seen buckets or a leak

22· ·there.· It was on the way through to Zellers.

23· · · · · · ·Q.· Okay, fair enough.· And then she

24· ·goes on to indicate that -- just so we're clear

25· ·here she's speaking to Ms. Morin, even though the

·1· ·e-mail is copied to Council.· She says:

·2· · · · · · ·"...you have the complete support of the

·3· · · · · · ·Library Board, Andrea Leddy, Dan Gagnon

·4· · · · · · ·and, of course, City Council.· I am sure

·5· · · · · · ·Tom Derreck will also do everything he

·6· · · · · · ·possibly can to help the Library out."

·7· · · · · · ·Now, I actually jumped over the part

·8· ·that I wanted to address here, sir.· If we could

·9· ·go back to the paragraph just before where I

10· ·stopped at public outcry, exclamation point.· Do

11· ·you see that?

12· · · · · · ·A.· Not at the moment.

13· · · · · · ·Q.· So go to the second paragraph where

14· ·it starts with "I myself."

15· · · · · · ·A.· Yes.

16· · · · · · ·Q.· And then you will see that at the

17· ·fifth line it says "public outcry", do you see

18· ·that?

19· · · · · · ·A.· Yes.

20· · · · · · ·Q.· And then if we keep on reading Ms.

21· ·McTaggart goes on to say:

22· · · · · · ·"There are also other stores, as you know,

23· · · · · · ·experiencing leaks.· The thing that I am

24· · · · · · ·really worried about is the possibility of

25· · · · · · ·the roof caving in with cars parked up

·1· · · · · · ·there.

·2· · · · · · ·It happened a few years ago at the Station

·3· · · · · · ·Mall, I think it was in Sault Ste. Marie,

·4· · · · · · ·Ontario, but I do not think that they had

·5· · · · · · ·cars parked on their roof.· It could

·6· · · · · · ·happen here."

·7· · · · · · ·Were you aware of this concern that Ms.

·8· ·McTaggart had about the roof caving in?

·9· · · · · · ·A.· No, I didn't get the e-mail.

10· · · · · · ·Q.· And if Ms. McTaggart had come to you

11· ·with this concern and this complaint what would

12· ·you have done?

13· · · · · · ·A.· If it was a complaint it would have

14· ·been investigated.

15· · · · · · ·Q.· Okay.· Now if we go to tab 53, that

16· ·is Exhibit No. 11-124.· So this is a few days

17· ·later on October 18th and it's an e-mail from Mr.

18· ·Derreck to Ms. McTaggart.· And basically Ms.

19· ·McTaggart is advising at the bottom here Ms. Morin

20· ·that she's had a conversation with Mr. Derreck,

21· ·and he's going to take several steps, you see that

22· ·at the bottom of the page.· That Mr. Derreck will

23· ·take various steps.

24· · · · · · ·And then if we go to the top of the page

25· ·now you see that Mr. Derreck then responds to Ms.

·1· ·McTaggart and advises of the following.

·2· · · · · · ·"Thanks Cathy.· For your info, I've

·3· · · · · · ·attached the proposed plan of action that

·4· · · · · · ·we resolved on at this afternoon's

·5· · · · · · ·meeting.· I'm awaiting comments (by noon

·6· · · · · · ·tomorrow) from everyone when attended -

·7· · · · · · ·and the Mayor - before putting things in

·8· · · · · · ·motion."

·9· · · · · · ·Let me stop here for a second.· Were you

10· ·part of this meeting with Mr. Derreck and

11· ·Councillor McTaggart and other people of the

12· ·library with respect to an action plan?

13· · · · · · ·A.· No, I wasn't.

14· · · · · · ·Q.· And Mr. Derreck went on to say:

15· · · · · · ·"The one thing I did already, was to

16· · · · · · ·direct Chris Clouthier to go over and do a

17· · · · · · ·building inspection this afternoon.· Syl

18· · · · · · ·is away today and it concerned me that no

19· · · · · · ·inspection had been done to this point -

20· · · · · · ·which could leave the City hanging out to

21· · · · · · ·dry -- or at least embarrassed - if anyone

22· · · · · · ·were to be hurt or made ill, or a business

23· · · · · · ·be forced to shut down or suffer any loss

24· · · · · · ·because of the leakage dilemma."

25· · · · · · ·Do you recall, sir, Mr. Derreck

·1· ·approaching you and asking you to conduct an

·2· ·inspection at the library?

·3· · · · · · ·A.· Yes.

·4· · · · · · ·Q.· Can you describe for the

·5· ·Commissioner the conversation that you had with

·6· ·Mr. Derreck on October 18th when he approached

·7· ·you.

·8· · · · · · ·A.· It was somewhat brief.· He had been

·9· ·involved apparently with these meetings and had

10· ·come in to my office, it was late in the day I

11· ·recall.· I normally finish up at 4:30, it might

12· ·have been 3:30.· And he wanted me to go to the

13· ·mall right away.· And there was a mess at the

14· ·library and to go and investigate.· Go there, see

15· ·what I seen.· And he said and get -- report back

16· ·to him.· So it wasn't necessarily that I was going

17· ·to take notes and give him a typed letter or

18· ·anything like that.· It was just -- I was going to

19· ·check what was going on at the time, and then come

20· ·right back to City Hall where Mr. Derreck was and

21· ·go in and sit down with him and tell him what I

22· ·saw.

23· · · · · · ·Q.· And did Mr. Derreck tell you, when

24· ·you had that short conversation, of all of the

25· ·problems that the library had had for the last few

·1· ·days?

·2· · · · · · ·A.· I'm not sure if he did.· He might

·3· ·have.· But he was saying that at the moment the

·4· ·library was a mess, there was lots of leaks.· And

·5· ·they head a real problem over there and he wanted

·6· ·me to go investigate that.

·7· · · · · · ·Q.· And did you tell Mr. Derreck during

·8· ·that conversation that you had not been aware of

·9· ·these leaks?· Did you express to him your surprise

10· ·that you didn't know there were leaks at the

11· ·library?

12· · · · · · ·A.· I'm not sure if I told him that at

13· ·that time.· It was the first time that I was told

14· ·that there's a heavy leak going on at the library.

15· ·And I went away -- I went over right away to look

16· ·into it.

17· · · · · · ·Q.· Okay.· And describe to the

18· ·Commissioner your inspection.· So Mr. Derreck has

19· ·a conversation with you at 3:30 and you head over

20· ·to the library?

21· · · · · · ·A.· Yes.· So I went in the library

22· ·and -- through the side door, up the escalator,

23· ·down the hallway that heads towards the library.

24· ·And on my way down that hallway towards the

25· ·library you could see leaking, there was tarps

·1· ·over books, pails, buckets.

·2· · · · · · ·Q.· You could see that from the hallway

·3· ·because it's all glass doors, is that what you're

·4· ·saying?

·5· · · · · · ·A.· That's right.· I was walking towards

·6· ·and as I got closer I could see that the roof was

·7· ·leaking in many places.· There were ceiling tiles

·8· ·out, buckets to catch the water all over the place

·9· ·and the carpet was wet.· It had been leaking badly

10· ·for quite a while.

11· · · · · · ·Q.· During that inspection, sir, did you

12· ·go in and visit other stores?

13· · · · · · ·A.· No.

14· · · · · · ·Q.· So you limited your inspection to

15· ·the library?

16· · · · · · ·A.· I was told to go to the library and

17· ·that's the complaint I got to go to that place, so

18· ·I went right there.· And he wanted me to get back

19· ·to him after I had checked the library and give

20· ·him some information.

21· · · · · · ·Q.· Do you recall whether on your way to

22· ·the library you saw any evidence of any other

23· ·leaks in other areas of the mall?

24· · · · · · ·A.· I don't recall any.· Not the path I

25· ·took.

·1· · · · · · ·Q.· Okay.· And I understood you a few

·2· ·seconds ago that you indicated that you didn't

·3· ·take any notes during that preliminary inspection?

·4· · · · · · ·A.· No, it was late in the day and he

·5· ·wanted me to go see what I saw and report back to

·6· ·him.

·7· · · · · · ·Q.· Okay.· And did you take any pictures

·8· ·during that inspection, Mr. Clouthier?

·9· · · · · · ·A.· It would have been fairly normal to

10· ·do that, but I don't believe I did.· And the

11· ·reason might have been that he was standing over

12· ·me telling me to go over right away.· And he had

13· ·just been hired and so it was probably the first

14· ·contact I had with him.· And he was just wanting

15· ·me to leave right away and go take a look at

16· ·things so I did.

17· · · · · · ·MS. EFFENDI:· And, Mr. Commissioner,

18· ·just so you know we have actually requested for

19· ·any and all pictures that the City of Elliot Lake

20· ·would have had that would have been taken by Mr.

21· ·Clouthier, I understand that none could be found

22· ·for that particular inspection.

23· · · · · · ·BY MS. EFFENDI:

24· · · · · · ·Q.· Did you speak with anyone at the

25· ·library when you went in to do that inspection?

·1· · · · · · ·A.· I might have talked to some of the

·2· ·people that worked at the library.· They were

·3· ·there and they were taking me around to show me

·4· ·some of the different areas that had been damaged.

·5· · · · · · ·Q.· And did you recall anything else

·6· ·that they would have told you about what they have

·7· ·been suffering from?

·8· · · · · · ·A.· No, not that I recall.· I just -- I

·9· ·took a good look at the entire area and ended up

10· ·getting back to City Hall to report what I saw.

11· · · · · · ·Q.· Okay.· And how long would you say

12· ·that inspection lasted?

13· · · · · · ·A.· The library is not real big, it's

14· ·probably approximately the size of this room.· I'm

15· ·not sure if it's bigger or smaller.· I might have

16· ·been there 20 minutes to a half an hour.

17· · · · · · ·Q.· And do you recall whether or not you

18· ·went up above the ceiling tiles to examine any of

19· ·the beams?· Because you did say that you noticed

20· ·that some tiles were down.· Did you go up there?

21· · · · · · ·A.· I didn't go up there because I

22· ·didn't bring a ladder with me and there's not --

23· ·there wasn't a ladder there.· So when I went there

24· ·-- I did bring a flashlight.· And when I went

25· ·there, because the tiles were down, I was able to

·1· ·see, standing on the floor and looking up, just

·2· ·where some of the areas where it was leaking.

·3· · · · · · ·Q.· And did you notice anything

·4· ·particular in terms of the steel, or anything

·5· ·above the ceiling tiles where it was open?

·6· · · · · · ·A.· Not really just that it was dripping

·7· ·from everywhere.

·8· · · · · · ·Q.· And you indicated to us that you

·9· ·recall seeing buckets and tarps over the books?

10· · · · · · ·A.· That's correct.

11· · · · · · ·Q.· And what was your reaction when you

12· ·went in and saw that mess, if I can use your

13· ·words?

14· · · · · · ·A.· Well I was surprised that it was

15· ·that bad of a leak.

16· · · · · · ·Q.· So I understand that you then went

17· ·back to Mr. Derreck to describe to him what you

18· ·had seen?

19· · · · · · ·A.· Yes.

20· · · · · · ·Q.· And did he tell you anything in

21· ·terms of next steps or what you should be doing?

22· · · · · · ·A.· Did I tell him?

23· · · · · · ·Q.· No, did he tell you?

24· · · · · · ·A.· Well I think through talking we said

25· ·that Mr. Allard is back tomorrow.· And that Mr.

·1· ·Allard would want to go and follow up, and that

·2· ·we'll be willing to go back tomorrow and further

·3· ·investigate.

·4· · · · · · ·Q.· So you told him that you and Mr.

·5· ·Allard would conduct a second inspection the

·6· ·following day?

·7· · · · · · ·A.· Yes.

·8· · · · · · ·Q.· Given, sir, that we weren't able to

·9· ·find any of the pictures that you would have taken

10· ·during that inspection, what I'd like to do now is

11· ·show you a few videos and pictures that we were

12· ·provided by the City.· I understand that those

13· ·pictures and videos were taken by other City staff

14· ·members?

15· · · · · · ·A.· Okay.

16· · · · · · ·Q.· And I would like you to tell us

17· ·whether or not these pictures or videos reflect

18· ·what you remember seeing either on October 18th or

19· ·19?

20· · · · · · ·A.· Okay.

21· · · · · · ·MS. EFFENDI:· So, Ms. Kuka, could we

22· ·please start first with -- we'll start with some

23· ·photos.

24· · · · · · ·BY MS. EFFENDI:

25· · · · · · ·Q.· First of all, Mr. Clouthier -- if we

·1· ·could go to, and those are not in your brief but

·2· ·they are appearing on your screen.· I understand

·3· ·these pictures, from what we were told, were

·4· ·actually taken on October 13th of 2006, so a few

·5· ·days before you going in.

·6· · · · · · ·MS. EFFENDI:· So the first photo, Ms.

·7· ·Kuka, is Exhibit No. 11-60.

·8· · · · · · ·BY MS. EFFENDI:

·9· · · · · · ·Q.· Is that an accurate reflection, sir,

10· ·of what you saw during your inspections?

11· · · · · · ·A.· Yes.

12· · · · · · ·Q.· Okay.· And if we go to Exhibit No.

13· ·11-63.· Again we see a picture of the ceiling

14· ·tiles that have been removed or have fallen.· Is

15· ·this an accurate reflection of what you remember

16· ·seeing?

17· · · · · · ·A.· Yes.

18· · · · · · ·Q.· Exhibit No. 11-64.· This is kind of

19· ·an overview of the entire area.· Is that what you

20· ·recall observing?

21· · · · · · ·A.· Yes.

22· · · · · · ·Q.· Exhibit No. 11-65.· Again, sir, same

23· ·question.· Do you remember seeing that?

24· · · · · · ·A.· I believe so, yes.· The blue tarps

25· ·and the white buckets is what I recall seeing when

·1· ·I went there.

·2· · · · · · ·Q.· Okay.· And Exhibit No. 11-72 and

·3· ·this appears to be kind of the opposite side.· A

·4· ·different view of the same area.· Again that's

·5· ·what you recall seeing at the time?

·6· · · · · · ·A.· Yes.

·7· · · · · · ·Q.· And now if we could take a look at a

·8· ·couple of videos that we understand were taken --

·9· ·the first two that I will show you were actually

10· ·taken on October 13, 2006 and the last one was

11· ·taken on October 18th.· So we'll start with the

12· ·first one.

13· · · · · · ·MS. EFFENDI:· That's Exhibit No. 11-46,

14· ·Ms. Kuka.

15· · · · · · ·BY MS. EFFENDI:

16· · · · · · ·Q.· Keeping in mind again, Mr.

17· ·Clouthier, the question will be whether or not

18· ·that reflects what you remember seeing at that

19· ·time?

20· · · · · · ·A.· Okay.· [Video being played]

21· · · · · · ·Q.· Again, sir, do you recall seeing

22· ·that state of affairs at the library that we've

23· ·just seen on the video at the time of your

24· ·inspection?

25· · · · · · ·A.· I don't believe it was quite that

·1· ·bad.· I don't remember the big green tote bucket

·2· ·that was on the floor there, but otherwise

·3· ·similar.

·4· · · · · · ·Q.· And is it fair to say though that

·5· ·was on October 13, and when you looked at the

·6· ·e-mail of Ms. Morin a few minutes ago she

·7· ·described how she went through a clean-up process.

·8· ·So by the time you showed up on October 18th is it

·9· ·fair to assume that she might have cleaned up this

10· ·mess before you went in there?

11· · · · · · ·A.· It might have been slightly better,

12· ·yes.

13· · · · · · ·Q.· Okay.· And then the next video I

14· ·want to show you will be the last one, is Exhibit

15· ·No. 11-47.· [Video being played]

16· · · · · · ·Again, sir, is that what you saw when

17· ·you went and visited the library on October 18th.

18· · · · · · ·A.· I believe it must have been the time

19· ·before because that looks somewhat more severe

20· ·than the time I went.· I don't recall the large

21· ·totes collecting water and it dripping that bad,

22· ·but it was similar but not quite that bad.

23· · · · · · ·Q.· Okay.· Again I think that it's

24· ·probably fair to assume that there might have been

25· ·some clean up prior to you showing up for your

·1· ·inspection?

·2· · · · · · ·A.· Yes.

·3· · · · · · ·Q.· So I understood from your evidence

·4· ·then that on the next day, October 19th, you

·5· ·reported I assume to Mr. Allard what had happened

·6· ·the previous day?

·7· · · · · · ·A.· Yes.

·8· · · · · · ·Q.· And do you recall what you told Mr.

·9· ·Allard when he showed up to the office on October

10· ·19th?

11· · · · · · ·A.· That I had been asked by Mr. Derreck

12· ·to go see the problem at the mall -- at the

13· ·library.

14· · · · · · ·Q.· Okay.· And did Mr. Allard say

15· ·anything?· Did he express surprise?

16· · · · · · ·A.· He might have had an e-mail or

17· ·something that made him aware that that was going

18· ·on, like the day before or something.· And they

19· ·didn't get him so he came over and saw that I was

20· ·the only one there.· Yeah, the next morning,

21· ·whether Mr. Derreck had seen Mr. Allard or

22· ·whatever, we did talk and it was our plan to go

23· ·back up to the mall and check it.

24· · · · · · ·Q.· And did Mr. Allard at that time,

25· ·before you went to the library for the second

·1· ·inspection, did he express to you surprise that it

·2· ·was the first time he had heard of leaks at the

·3· ·library?

·4· · · · · · ·A.· I don't recall him acting in any way

·5· ·or saying anything in particular.· It was just

·6· ·this was what we were supposed to go out and do

·7· ·first thing in the morning.

·8· · · · · · ·Q.· Okay.· So you then attended to the

·9· ·mall I gather to conduct that inspection?

10· · · · · · ·A.· Yes.

11· · · · · · ·Q.· And can you describe to us just

12· ·generally the inspection, and I'll go through some

13· ·details after, but just generally what do you

14· ·remember of that second inspection?

15· · · · · · ·A.· I believe that Mr. Allard had said,

16· ·Let's go over.· And I think that he had a

17· ·clipboard for taking notes.· And I believe he had

18· ·brought his camera, though I'm not sure about

19· ·that.· He also had a camera and it's likely he

20· ·would have brought it, but that's not for sure.

21· · · · · · ·And we went there and we went to the

22· ·mall -- to the library first and it was similar to

23· ·what I had seen the day before.· So we looked

24· ·there and took some notes.· And I believe that we

25· ·went to a couple of other places in the mall.· We

·1· ·left the library and there is a very long hallway

·2· ·that heads I guess it's south, but it goes all the

·3· ·way down to the Zellers.

·4· · · · · · ·Q.· Okay.

·5· · · · · · ·A.· And we went down and we might have

·6· ·stopped and checked one other place, I'm not sure

·7· ·about that.· I do remember going down to the

·8· ·Zellers.

·9· · · · · · ·Q.· Okay.

10· · · · · · ·A.· And we checked -- the Zellers was --

11· ·had a lot of leaks too, and there was tiles

12· ·missing and buckets and so on and so forth.

13· · · · · · ·Q.· So you went inside the Zellers?

14· · · · · · ·A.· Yes.

15· · · · · · ·Q.· Okay.

16· · · · · · ·MS. EFFENDI:· So if we could pull, Ms.

17· ·Kuka, Exhibit No. 1704.

18· · · · · · ·THE COMMISSIONER:· Just have a hook at

19· ·the clock, Ms. Effendi, and tell me what is an

20· ·appropriate time.

21· · · · · · ·MS. EFFENDI:· This is probably an

22· ·appropriate, Mr. Commissioner, before we go into

23· ·the report that Mr. Allard then gave to Mr.

24· ·Derreck.

25· · · · · · ·THE COMMISSIONER:· We'll rise until

·1· ·2:00.

·2· · · · · · ·---· Luncheon break taken at 12:45 p.m.

·3· · · · · · ·---· Upon resuming at 2:00 p.m.

·4· · · · · · ·MS. EFFENDI:· Good afternoon, Mr.

·5· ·Commissioner.

·6· · · · · · ·BY MS. EFFENDI:

·7· · · · · · ·Q.· Mr. Clouthier, just before the break

·8· ·you had indicated to us that you had conducted a

·9· ·second inspection on October 19 of the library and

10· ·some portions of the mall with Mr. Allard, do you

11· ·recall that?

12· · · · · · ·A.· Yes.

13· · · · · · ·MS. EFFENDI:· And I'd like to ask Ms.

14· ·Kuka to pull for us now Exhibit No. 1704.

15· · · · · · ·BY MS. EFFENDI:

16· · · · · · ·Q.· And you will find that, sir, this is

17· ·volume 7 that you should have in front of you and

18· ·you should go to tab 68.· And at tab 68 is there a

19· ·document that is stapled to the back of this page?

20· ·Do you have that?

21· · · · · · ·A.· Yes.

22· · · · · · ·Q.· Perfect.· Take a look at the stapled

23· ·version.

24· · · · · · ·MS. EFFENDI:· Just so, Mr. Commissioner,

25· ·you're aware of what I'm speaking to with the

·1· ·witness, in our database we have several versions

·2· ·of this e-mail from Mr. Allard to Mr. Derreck, but

·3· ·the version that I thought we should take a look

·4· ·at is the one that was actually sent with the date

·5· ·stamped on it.· The other versions that we have

·6· ·appear to be drafts of this e-mail.

·7· · · · · · ·THE COMMISSIONER:· Okay.

·8· · · · · · ·BY MS. EFFENDI:

·9· · · · · · ·Q.· Mr. Clouthier, you described to us

10· ·generally the inspection that was conducted on

11· ·October 19th.· But I thought we could take a look

12· ·at this e-mail that Mr. Allard sent to Mr. Derreck

13· ·a few days later.· And it appears to be a report

14· ·of some sort of the observations that you and him

15· ·saw on that day when you conducted your

16· ·inspection.· Before today have you ever seen this

17· ·document, this e-mail?

18· · · · · · ·A.· · I don't believe that I was given a

19· ·copy of it.· I was involved with the inspection so

20· ·I mean I just knew it from being involved with the

21· ·inspection.

22· · · · · · ·Q.· Do you recall whether or not Mr.

23· ·Allard obtained your input before sending this

24· ·report to Mr. Derreck?

25· · · · · · ·A.· I don't believe so.

·1· · · · · · ·Q.· Okay.· So let's go through the

·2· ·e-mail, the report, and I'll ask you a few

·3· ·questions along the way.

·4· · · · · · ·So Mr. Allard says to Mr. Derreck, he

·5· ·says:

·6· · · · · · ·"A second inspection of the roof leak

·7· · · · · · ·conditions was conducted on Thursday,

·8· · · · · · ·October 19, 2006 by Chris Clouthier in my

·9· · · · · · ·company at approximately 11:30 a.m.· The

10· · · · · · ·weather was partly cloudy sunny/overcast,

11· · · · · · ·mild (slightly above zero temperature), no

12· · · · · · ·rain occurring at that time.· While on

13· · · · · · ·site we met with the following people:

14· · · · · · ·Susan Morin, Librarian; Tom Turner, Mall

15· · · · · · ·Manager; and Brian England who is

16· · · · · · ·overseeing the roof leakage remediation."

17· · · · · · ·So let me stop here first.· I do

18· ·believe -- I'm not sure you told us earlier that

19· ·you had met with these people, but can you tell us

20· ·what discussion you had with each of these

21· ·individuals?· So let's start with Ms. Morin.· What

22· ·was the conversation with Ms. Morin?

23· · · · · · ·A.· Well I don't actually recall exactly

24· ·what she was saying, but we had went to the mall

25· ·and ran into who I believe was Mr. Turner the

·1· ·manager of the mall, and Ms. Morin, the chief

·2· ·librarian, and we had talked about the leaks and

·3· ·so on.· And Ms. Morin was not too happy about what

·4· ·was going on at the time.

·5· · · · · · ·Q.· I gather she had concerns given the

·6· ·situation that the library had experienced in the

·7· ·days proceeding your inspection?

·8· · · · · · ·A.· Yes.· And Mr. Turner I believe he

·9· ·had mentioned something.· I think he was a new

10· ·mall manager at the time.· He had mentioned at the

11· ·time that he was hoping to -- he was going to be

12· ·getting these leaks fixed.

13· · · · · · ·Q.· Okay.· And did Mr. Turner tell you

14· ·anything else?

15· · · · · · ·A.· I think he might have mentioned that

16· ·it was Mr. England who was going to be doing --

17· ·being part of getting the roof leaks corrected.

18· · · · · · ·Q.· And what about the conversation with

19· ·Mr. England?

20· · · · · · ·A.· With who?

21· · · · · · ·Q.· Mr. England?· Brian England.

22· · · · · · ·A.· I think this was a Thursday, I think

23· ·we actually seen Mr. England later in the

24· ·afternoon on the roof deck.

25· · · · · · ·Q.· And we'll get to that, I think Mr.

·1· ·Allard describes that conversation later that

·2· ·afternoon.

·3· · · · · · ·Now let's keep on reading the e-mail.

·4· ·Mr. Allard then says:

·5· · · · · · ·The following observations were made:

·6· · · · · · ·This appears to be the first time in the

·7· · · · · · ·past 4 years an ongoing leakage problem

·8· · · · · · ·with the mall roof has been brought to the

·9· · · · · · ·attention of Building Department staff for

10· · · · · · ·either structural concerns or property

11· · · · · · ·standards compliance matters."

12· · · · · · ·I gather, Mr. Clouthier, from your

13· ·previous answer that you agree with that?

14· · · · · · ·A.· I do agree with that, yes.

15· · · · · · ·Q.· Okay.· If we move onto the next

16· ·bullet it says:

17· · · · · · ·"Three tenants areas of the building were

18· · · · · · ·briefly reviewed; Library, Northern

19· · · · · · ·Reflections and Zellers.· These are

20· · · · · · ·locations where roof leakage is evident."

21· · · · · · ·Do you recall, and I know you've

22· ·indicated to us that you went inside the library,

23· ·and you went inside Zellers.· Do you recall also

24· ·visiting the inside of Northern Reflections?

25· · · · · · ·A.· I recall that we were to see a third

·1· ·place and Northern Reflections, now that I've seen

·2· ·this, I believe that's the place that we went to.

·3· ·But my recollection was when we went between the

·4· ·library and on our way down to Zellers, I believe

·5· ·Northern Reflections is half way down, it was

·6· ·closed because of the leaks at the time.· And

·7· ·there was -- it had large glass doors that were

·8· ·closed and locked up I believe.· And so we weren't

·9· ·able to enter inside the room but we could see

10· ·from the hallway what was going on there.

11· · · · · · ·Q.· And what did you see that allowed

12· ·you to determine that it was the roof leakage?

13· · · · · · ·A.· I believe at the time there were

14· ·buckets out.· It was closed because of the leaks

15· ·and there was water on the floor.· I don't believe

16· ·I recall anything else.

17· · · · · · ·Q.· Okay.· And I gather that on October

18· ·19th when you went for the second time to visit

19· ·the library you again saw the buckets and the

20· ·tarps, the same kind of state of affairs that you

21· ·had seen the day before?

22· · · · · · ·A.· Yes.

23· · · · · · ·Q.· Okay.· And then at Zellers can you

24· ·describe to us, I know you've indicated to us that

25· ·you had seen again buckets there and missing

·1· ·ceiling tiles, is that correct?

·2· · · · · · ·A.· Yes.

·3· · · · · · ·Q.· Do you recall anything else that you

·4· ·would have seen at Zellers or any of the other

·5· ·locations?

·6· · · · · · ·A.· It might have been at that time that

·7· ·Mr. Allard had noticed, when we were going through

·8· ·Zellers, that there were some fireproofing off the

·9· ·beams in areas, where we could see where the tiles

10· ·weren't in place.

11· · · · · · ·Q.· Okay.· And we'll get to that also in

12· ·a second.· Mr. Allard then goes on to say:

13· ·"Dollarama apparently has leakage problems, as

14· ·well, but we did not review this area."· Do you

15· ·recall who it was that would have indicated to you

16· ·and Mr. Allard that Dollarama was also

17· ·experiencing leaks?

18· · · · · · ·A.· I wasn't aware of that.· But I mean

19· ·we had talked to the mall manager earlier that day

20· ·or just previous to our walk-through so it might

21· ·have been him that said something about that.

22· · · · · · ·Q.· But you personally until you visited

23· ·the mall you weren't aware that Dollarama was also

24· ·experiencing leaks?

25· · · · · · ·A.· I wasn't aware of that.

·1· · · · · · ·Q.· And then to go on with the paragraph

·2· ·it says:· "Northern reflection was closed due to

·3· ·the leakage and some of the stock was removed to

·4· ·other areas of the mall."· Which confirms your

·5· ·recollection that you've just indicated to us.

·6· ·And then he goes on to say:

·7· · · · · · ·"We were only able to see in to the tenant

·8· · · · · · ·space through the glazed partition doors.

·9· · · · · · ·The Zellers Store has ceiling tiles

10· · · · · · ·removed and tubs placed on the floor where

11· · · · · · ·leakage was occurring.· In one area of the

12· · · · · · ·store where we looked into the ceiling

13· · · · · · ·space (personal hygiene products dept.) a

14· · · · · · ·steel beam was found to be missing a

15· · · · · · ·portion of its fire protection material

16· · · · · · ·where leakage and rust occurred.· In

17· · · · · · ·Zellers there appeared to be quite a

18· · · · · · ·number of isolated leakage points

19· · · · · · ·throughout the store."

20· · · · · · ·You indicated to us that you had seen

21· ·those missing fireproofing.· Did you actually

22· ·climb up above the ceiling tiles to take a look at

23· ·the steel and what was up there?

24· · · · · · ·A.· No.

25· · · · · · ·Q.· So it's from the floor that you

·1· ·basically were observing what was going on above

·2· ·the tiles?

·3· · · · · · ·A.· That's right, yes.

·4· · · · · · ·Q.· You didn't have a ladder or

·5· ·anything?

·6· · · · · · ·A.· No.

·7· · · · · · ·Q.· Did you have a flashlight like on

·8· ·October 18th?

·9· · · · · · ·A.· I believe we did.

10· · · · · · ·Q.· So is the missing fireproofing was

11· ·it only in the Zellers that you recall?

12· · · · · · ·A.· That's the only place that we looked

13· ·up and saw fireproofing off the steel beam in a

14· ·couple of areas in there.

15· · · · · · ·Q.· And do you recall whether or not you

16· ·took pictures?· I seem to remember that you told

17· ·us this morning that Mr. Allard would have come in

18· ·with his clipboard and his camera.

19· · · · · · ·A.· Normally.· I'm not sure if he had

20· ·his camera, he normally did.

21· · · · · · ·Q.· Okay.

22· · · · · · ·A.· And he would have normally have

23· ·taken pictures of check of a building like that,

24· ·but I'm not sure if we he had his camera or not.

25· · · · · · ·Q.· Do you recall if you had your

·1· ·camera?

·2· · · · · · ·A.· I don't recall if I had mine.

·3· · · · · · ·Q.· Okay.· Now if we keep on reading

·4· ·here?

·5· · · · · · ·MS. EFFENDI:· If we could move the page

·6· ·a bit, Ms. Kuka, so we can have this full

·7· ·paragraph.

·8· · · · · · ·BY MS. EFFENDI:

·9· · · · · · ·Q.· So it goes on to say:

10· · · · · · ·"The library tenant space appeared to be

11· · · · · · ·the most extensively damaged of the

12· · · · · · ·locations reviewed.· At the time of the

13· · · · · · ·inspection there did not appear to be a

14· · · · · · ·lot of water entering the building in the

15· · · · · · ·fiction book area, however, a small amount

16· · · · · · ·of dripping was occurring from soaked

17· · · · · · ·insulation.· Tiles were removed along the

18· · · · · · ·beam and drain pipe run; tarp covered book

19· · · · · · ·shelves; large containers to collect water

20· · · · · · ·were on the floor and fans & dehumidifiers

21· · · · · · ·were running to try out the area.· This

22· · · · · · ·general area of the Library was cordoned

23· · · · · · ·off to prevent entry by the public.· The

24· · · · · · ·exposed ceiling area in view was examined

25· · · · · · ·with a flashlight from the floor only.

·1· · · · · · ·Insulation with a foil-type backing was in

·2· · · · · · ·placed against a roof deck.· The main roof

·3· · · · · · ·beam in this area had approximately a ten

·4· · · · · · ·foot length of the fire protection

·5· · · · · · ·material missing from the bottom flange

·6· · · · · · ·and had a crust of rust over the entire

·7· · · · · · ·exposed area.· Little else could be seen,

·8· · · · · · ·given the vantage point and remaining

·9· · · · · · ·material covering the structure."

10· · · · · · ·Mr. Clouthier, is that an accurate

11· ·reflection of what you recall the state to be at

12· ·the library?

13· · · · · · ·A.· Yes.

14· · · · · · ·Q.· So I gather then looking at this

15· ·this refreshes your memory that in the library

16· ·there weren't also missing fireproofing there?

17· · · · · · ·A.· Yes.

18· · · · · · ·Q.· Now if we go to the next paragraph,

19· ·it says:

20· · · · · · ·In any of the areas observed, there was

21· · · · · · ·nothing seen or mentioned that would lead

22· · · · · · ·us to believe the structure is in imminent

23· · · · · · ·danger of collapse or for that matter that

24· · · · · · ·it is anywhere close to this condition.

25· · · · · · ·However, the information that we were

·1· · · · · · ·given, and the fact that there is

·2· · · · · · ·substantial rust in the leak areas is

·3· · · · · · ·testimony that this is a long-standing and

·4· · · · · · ·ongoing leakage problem.· The concern that

·5· · · · · · ·this raises is the that the continuous

·6· · · · · · ·entry of water onto the steel structure

·7· · · · · · ·may have had or may still have an adverse

·8· · · · · · ·impact on the structural elements and its

·9· · · · · · ·connections.· To dispel any of these

10· · · · · · ·suspicions, a structural review of the

11· · · · · · ·leak areas by a Professional Engineer will

12· · · · · · ·be necessary."

13· · · · · · ·So let's take this one step back and

14· ·kind of go through some of the information Mr.

15· ·Allard provided us.

16· · · · · · ·He mentioned that there is "no imminent

17· ·danger of collapse and that the situation isn't

18· ·even close to that."· How did -- were you able --

19· ·you and Mr. Allard able to make that

20· ·determination?

21· · · · · · ·A.· It's actually not me making that.

22· ·It's Mr. Allard's -- this is his writing and his

23· ·opinion on what he saw.

24· · · · · · ·Q.· So did he indicate to you that this

25· ·was his opinion of the matter when you guys were

·1· ·going through the inspection?

·2· · · · · · ·A.· I don't think he mentioned that to

·3· ·me.· I think he probably took a note and formed

·4· ·that as his opinion.

·5· · · · · · ·Q.· Do you agree, Mr. Clouthier, with

·6· ·his opinion?

·7· · · · · · ·A.· I would think that --

·8· · · · · · ·Q.· At the time?

·9· · · · · · ·A.· I would think that it would not be

10· ·enough of an area, or enough detail seen to make a

11· ·determination.· Like you couldn't -- he was

12· ·looking at just a piece of beam, not connections

13· ·and other -- a bigger area.· There's a lot of

14· ·steel beam going throughout the building.· So he's

15· ·just looking at one small little section.

16· · · · · · ·Q.· So did you express to Mr. Allard

17· ·that opinion?· That, you know, you should be

18· ·looking at other steel beams to figure out whether

19· ·or not there is a problem?

20· · · · · · ·A.· Well we wouldn't make that decision.

21· ·We wouldn't come to that determination.· I think

22· ·what was correct is when Mr. Allard says it was

23· ·his belief that it was serious enough to have a

24· ·structural engineer come in and review it, because

25· ·that would have been the right thing to do.· We're

·1· ·not able to give our opinion on that really.

·2· · · · · · ·Q.· So you weren't able to give your

·3· ·opinion.· So you were -- you needed to seek the

·4· ·opinion of a professional engineer who could

·5· ·advise you on this condition of the mall?

·6· · · · · · ·A.· Yes.

·7· · · · · · ·Q.· So I gather from reading this

·8· ·paragraph, and do you agree with the observation

·9· ·of Mr. Allard in terms of the substantial rust and

10· ·the potential risk about the water on the steel?

11· · · · · · ·A.· I agree that if enough water goes

12· ·through a building and through these areas, these

13· ·steel supports, that it could cause a problem.

14· · · · · · ·Q.· Okay.

15· · · · · · ·A.· I wouldn't be able to determine

16· ·that, but I know if enough time and enough water

17· ·went through it it could cause problems.

18· · · · · · ·Q.· So I gather then at the time you

19· ·understood that there could be an impact on the

20· ·steel structure because of the constant water

21· ·leakage through from the roof?

22· · · · · · ·A.· There could be.

23· · · · · · ·Q.· Okay.· If then if we keep on going

24· ·to next bullet it's indicated:

25· · · · · · ·"Concerns with respect to the loss of fire

·1· · · · · · ·protection material from portions of the

·2· · · · · · ·sealed structure has been passed onto the

·3· · · · · · ·Fire Chief this afternoon and a follow-up

·4· · · · · · ·inspection has been conducted by Fire

·5· · · · · · ·Department personnel."

·6· · · · · · ·And we'll see in a second the actual

·7· ·note and complaint that was made by Mr. Allard to

·8· ·the Fire Department.· But were you aware, sir,

·9· ·that Mr. Allard had communicated his concern to

10· ·the Fire Department?

11· · · · · · ·A.· I was not aware of that, no.

12· · · · · · ·Q.· And I'll ask you a few more

13· ·questions once we get to that complaint. I'll pass

14· ·to the next point for now.

15· · · · · · ·He goes on to say, "While on site last

16· ·Thursday..."· And just so we're clear, this

17· ·inspection October 19th was the Thursday, but he

18· ·sent the e-mail to Mr. Derreck on October 23rd.

19· ·So he says:

20· · · · · · ·"While on site last Thursday, we reviewed

21· · · · · · ·the remediation that was being conducted

22· · · · · · ·on the Roof (Parking Deck) and Mr. English

23· · · · · · ·explained the process in considerable

24· · · · · · ·detail."

25· · · · · · ·Is it fair to assume, sir, that when he

·1· ·says Mr. English here it's just a typo and he

·2· ·means Mr. Brian England?

·3· · · · · · ·A.· Yes, I believe so.

·4· · · · · · ·Q.· And then he say:

·5· · · · · · ·"He appeared to be extremely knowledgeable

·6· · · · · · ·in applying Dow-Corning silicon sealants

·7· · · · · · ·and claims extensive experience with very

·8· · · · · · ·similar projects and problems as that at

·9· · · · · · ·hand.· The repairs involve removing the

10· · · · · · ·existing urethane sealant in all of the

11· · · · · · ·joints and ands cracks in the concrete

12· · · · · · ·slab surface (several hundred thousand

13· · · · · · ·linear feet) routing and etching the

14· · · · · · ·joint, placing of a closed cell foam

15· · · · · · ·backing rod into the crack and applying a

16· · · · · · ·specific Dow-Corning silicon product to

17· · · · · · ·seal the joint.· Apparently, because the

18· · · · · · ·silicone remains entirely flexible (not

19· · · · · · ·the case with urethane) and the backer rod

20· · · · · · ·insures that the sealant has contact only

21· · · · · · ·on the two sealing surfaces and allows

22· · · · · · ·movement of the sealant across the gap, it

23· · · · · · ·therefore is superior system to keep water

24· · · · · · ·out."

25· · · · · · ·So is that your recollection, sir, of

·1· ·the conversation that you had, you and Mr. Allard

·2· ·had with Mr. England?

·3· · · · · · ·A.· Yes.· I don't remember the words

·4· ·specifically, but he was talking about the product

·5· ·he was going to use and how he was going to do it.

·6· · · · · · ·Q.· So I gather this conversation you

·7· ·had it on the roof with Mr. England?

·8· · · · · · ·A.· Yes.

·9· · · · · · ·Q.· Was Mr. Turner there as well?

10· · · · · · ·A.· I don't recall him being there.

11· · · · · · ·Q.· And was work actually being done

12· ·when you were up there on the roof?

13· · · · · · ·A.· I don't believe so.

14· · · · · · ·Q.· Okay.· There was no workers doing

15· ·the actual work?

16· · · · · · ·A.· No, I believe it was something that

17· ·they were wanting to do or were going to attempt.

18· · · · · · ·Q.· Okay.· So was Mr. England showing

19· ·you the cracks and showing you what he was going

20· ·to attempt to do?

21· · · · · · ·A.· Yeah, I believe he was going over

22· ·that, yes.

23· · · · · · ·Q.· But there was no mall maintenance or

24· ·workers up on the roof at the time?

25· · · · · · ·A.· I don't recall them being there.

·1· · · · · · ·Q.· Did you understand that the way the

·2· ·work was going to be conducted was actually the

·3· ·appropriate way?· Did you know if this was the

·4· ·actual right way to do the repairs?

·5· · · · · · ·A.· No, I didn't.· Well I mean I

·6· ·understood what he was attempting to do and it all

·7· ·sounded good, but I didn't know if he was using

·8· ·the correct stuff and he was going about it the

·9· ·correct way.· It was just him verbally talking.

10· ·And we were -- I think Mr. Allard was taking notes

11· ·when he was talking to him.

12· · · · · · ·Q.· Okay.· And I understand, and we'll

13· ·go to the next paragraph, that you and Mr. Allard

14· ·then asked him for specification of the work that

15· ·was being conducted, or to be conducted?

16· · · · · · ·A.· Yes, he likely did that.

17· · · · · · ·Q.· Okay.· So let's read the next

18· ·paragraph and I'll ask you a few questions.· He

19· ·then goes on to say:

20· · · · · · ·"In addition, improvements to the roof

21· · · · · · ·drains by the placement of appropriate

22· · · · · · ·seals around the hoppers, replacing

23· · · · · · ·fittings and piping within the drainage

24· · · · · · ·system was essentially how Mr. England

25· · · · · · ·described resolving the immediate problem

·1· · · · · · ·with the Library flooding.· When requested

·2· · · · · · ·Mr. England was unable to provide a

·3· · · · · · ·written specification or plan for the

·4· · · · · · ·overall roof leakage remediation.· The

·5· · · · · · ·level of comfort for both the owner and

·6· · · · · · ·affected tenants that an unwritten

·7· · · · · · ·remediation program and schedule cannot be

·8· · · · · · ·all that high and should be formalized."

·9· · · · · · ·So do you recall when you asked Mr.

10· ·England for those specs what was his answer, and

11· ·the conversation you had about that issue?

12· · · · · · ·A.· As far as I know he was saying that

13· ·he was going to get the paperwork for us.

14· · · · · · ·Q.· Okay.· And I gather the reason why

15· ·you would have asked him that is because you

16· ·yourself, as you indicated to me, weren't sure

17· ·that this was the right way of doing the repairs.

18· ·But if you had the specs from an engineer or an

19· ·architect then you would be able to rely on that

20· ·information as, you know, evidence that it was the

21· ·right and proper way of doing the repairs?

22· · · · · · ·A.· Yes, we would take that over someone

23· ·just telling us something.

24· · · · · · ·Q.· Okay.· Do you know whether or not a

25· ·building permit was requested for those repairs,

·1· ·Mr. Clouthier?

·2· · · · · · ·A.· I'm not sure if one was requested.

·3· · · · · · ·Q.· Do you think that it should have

·4· ·been if one wasn't given the description of the

·5· ·work?

·6· · · · · · ·A.· I think it could have been, but I'm

·7· ·not really sure.· Like that would have been Mr.

·8· ·Allard's business and it would have been him to

·9· ·look into that determine whether that needed it or

10· ·not.

11· · · · · · ·Q.· Okay.· And do you recall whether or

12· ·not, and this is not a trick question, do you

13· ·recall whether or not Mr. England provided you any

14· ·documents when you were speaking to him?

15· · · · · · ·A.· I don't believe he did.

16· · · · · · ·Q.· And I'm just going to show you a few

17· ·documents that we actually got from the Elliot

18· ·Lake Fire Department.· I'm not sure whether or not

19· ·you would have received them, but you can let me

20· ·know whether you did or not and whether those are

21· ·documents that maybe Mr. England gave to you.

22· · · · · · ·If you go to tab in your book volume 7,

23· ·tab 94, that is Exhibit No. 3377.· And this you'll

24· ·see is a document entitled "Switch to silicone

25· ·part of ongoing quality strategy".· And we see

·1· ·that at the bottom hand right corner of the

·2· ·document it says "Dow Corning", it appears to be a

·3· ·document that they prepared.

·4· · · · · · ·And if we go to the next document at tab

·5· ·95, and it's Exhibit No. 3378.· This appears to

·6· ·actually be kind of product information specs

·7· ·about the sealant, Dow Corning Self-Leveling

·8· ·Silicone Joint Sealant that maybe might have been

·9· ·used to conduct those repairs.· Have you ever seen

10· ·these documents, Mr. Clouthier?

11· · · · · · ·A.· I don't recall seeing these ones,

12· ·I've seen many like this.· This one that's up

13· ·right now looks like something that would be used

14· ·over a deck like that, but again I don't believe

15· ·I've ever seen this document.

16· · · · · · ·Q.· Okay.· Now if we go back to Exhibit

17· ·No. 1704, tab 68, sir, the e-mail of Mr. Allard.

18· · · · · · ·MS. EFFENDI:· And if we go to the second

19· ·page, Ms. Kuka, the last paragraph of this e-mail,

20· ·which was the last one we haven't looked at yet.

21· · · · · · ·BY MS. EFFENDI:

22· · · · · · ·Q.· Mr. Allard finishes by saying -- do

23· ·you have that, sir?

24· · · · · · ·A.· Yes.

25· · · · · · ·Q.· And he says;

·1· · · · · · ·"At this point, in accordance with the

·2· · · · · · ·Levels of Service Policy, we will be

·3· · · · · · ·involved in Property Standards enforcement

·4· · · · · · ·based on a complaint of a tenant (the

·5· · · · · · ·Public Library).· ·The focus of our

·6· · · · · · ·involvement will be in regards to

·7· · · · · · ·answering concerns on the structure as a

·8· · · · · · ·result of the leakage and that the leakage

·9· · · · · · ·itself be resolved.· We will be issuing a

10· · · · · · ·notice of violation to the owner tomorrow

11· · · · · · ·in this regard."

12· · · · · · ·Did Mr. Allard discuss with you the next

13· ·step that he intended on taking following your

14· ·inspection on October 19th.

15· · · · · · ·A.· Yes.· Well he did -- he did tell me

16· ·after we did our inspections.· And -- that he

17· ·would be doing -- that he would be sending a

18· ·notice of violation.

19· · · · · · ·Q.· Did you assist him in preparing that

20· ·notice of violation?

21· · · · · · ·A.· No.

22· · · · · · ·Q.· Just taking a step back for a

23· ·second, had you ever during your tenure as a

24· ·Building Inspector at the City of Elliot Lake ever

25· ·seen any engineer report which vouched for the

·1· ·structural soundness of the mall or its

·2· ·watertightness?

·3· · · · · · ·A.· I don't believe I did, no.

·4· · · · · · ·Q.· Do you believe that any of these

·5· ·reports existed or would have been in the

·6· ·possession of the Building Department?

·7· · · · · · ·A.· They might have been.· I didn't see

·8· ·them.· I never had them or reviewed them.· I

·9· ·wasn't aware of them.

10· · · · · · ·Q.· And prior to this notice, which we

11· ·will take a look at.· Am I right, sir, that the

12· ·notice actually requested, as per the e-mail of

13· ·Mr. Allard, that a professional engineer comes in

14· ·and gives the City a report about the structure of

15· ·the mall?

16· · · · · · ·A.· Yes.

17· · · · · · ·Q.· Okay.· And prior to that request do

18· ·you know whether or not any previous request of

19· ·that nature had been made to the owner of the

20· ·mall?

21· · · · · · ·A.· Not that I'm aware of.

22· · · · · · ·Q.· Okay.· So then prior to that, as far

23· ·as you know, no engineer had looked at the mall,

24· ·as far as you know?

25· · · · · · ·A.· No, I'm not -- I don't recall.· I

·1· ·don't know of any engineer review that was done at

·2· ·the mall.

·3· · · · · · ·Q.· Okay.· So that was the first time

·4· ·that an external consultant was being asked to

·5· ·look at the mall -- that the City was asking the

·6· ·owner to --

·7· · · · · · ·A.· That I was aware of.

·8· · · · · · ·Q.· Okay, perfect.· So let's take a look

·9· ·then -- well let me back track for a second before

10· ·taking a look at this notice which we've been

11· ·talking about.

12· · · · · · ·So you had a discussion with Mr. Allard

13· ·after he told you, Look, we're going to issue this

14· ·notice.· Did you after that go back and meet with

15· ·Mr. Allard and Mr. Derreck to discuss what -- the

16· ·observation that you had made on that second

17· ·inspection?

18· · · · · · ·A.· I didn't, no.

19· · · · · · ·Q.· Do you know whether Mr. Allard did?

20· · · · · · ·A.· They might have.· I'm not sure.

21· · · · · · ·Q.· So were you involved in any of the

22· ·following steps following the second inspection,

23· ·sir, on October 19th.

24· · · · · · ·A.· No, I was just part of the

25· ·inspection with Mr. Allard and that was pretty

·1· ·well it for me.

·2· · · · · · ·Q.· So I'll just take a look, keeping

·3· ·this answer in mind just so we have that on the

·4· ·record.· I'll show you a few documents and see if

·5· ·you were aware of these documents or not?

·6· · · · · · ·A.· Okay.

·7· · · · · · ·Q.· Before we go any further there was

·8· ·actually a Council meeting on October 23rd, which

·9· ·is the date of this e-mail, where Council

10· ·discussed this issue of the leaks and the

11· ·violation of the Property Standards By-Law.· Were

12· ·you present at that meeting of Council?

13· · · · · · ·A.· No, I wasn't.

14· · · · · · ·Q.· Now if we go to tab 73 of the volume

15· ·you have in front of you, that is Exhibit No.

16· ·3367.· And you'll recall that when we were looking

17· ·a the e-mail of Mr. Allard regarding his

18· ·observation of that second inspection that you

19· ·attended with him, that he indicated in there that

20· ·he would be -- that he had had actually

21· ·communicated with the Fire Department to advise

22· ·them about the missing fireproofing.· Remember we

23· ·saw that in the e-mail?

24· · · · · · ·A.· Yes.

25· · · · · · ·Q.· So this is a document that was

·1· ·provided to us by the City, and it's dated also

·2· ·October 23rd, 2006.

·3· · · · · · ·MS. EFFENDI:· And if we go just scroll

·4· ·down a bit, Ms. Kuka.

·5· · · · · · ·BY MS. EFFENDI:

·6· · · · · · ·Q.· We see at the top that it says,

·7· ·"Elliot Lake Fire Department", so clearly it's a

·8· ·document from the Fire Department.· And it's

·9· ·received by the Chief.· The complainant is Syl

10· ·Allard, referred to Ken Barnes and the particulars

11· ·of the complaint are as follows:

12· · · · · · ·"Syl called with reference to a Property

13· · · · · · ·Standards complaint at the mall.· He said

14· · · · · · ·during his inspection at the library and

15· · · · · · ·Zellers that he noticed the fireproofing

16· · · · · · ·material protecting the structural steel

17· · · · · · ·had fallen off leaving sections of the

18· · · · · · ·beam exposed.· He will be putting an order

19· · · · · · ·for them to review all structural steel

20· · · · · · ·components and remedy the leak, he felt

21· · · · · · ·the fireproofing was a Fire Code issue."

22· ·And it says,

23· · · · · · ·"Date & Particulars of Action Taken:

24· · · · · · ·October 23, 2006, 1330hrs.· I went to the

25· · · · · · ·Algo Mall and took pictures of the

·1· · · · · · ·structural steel that was visible at the

·2· · · · · · ·time.· Many of beams did not have

·3· · · · · · ·fireproofing.· The beams with

·4· · · · · · ·fireproofing, had sections that had fallen

·5· · · · · · ·off or had been removed, exposing the

·6· · · · · · ·steel.· An inspection report has been

·7· · · · · · ·prepared."

·8· · · · · · ·I understand that that bottom part is

·9· ·actually what had been done by the Fire Department

10· ·and that the complaint is what Mr. Allard told his

11· ·colleagues of the Fire Department?

12· · · · · · ·A.· Yes.

13· · · · · · ·Q.· Okay.· And again you indicated to us

14· ·that you weren't aware that Mr. Allard was going

15· ·to take that extra step of advising your

16· ·colleagues of the Fire Department?

17· · · · · · ·A.· No.

18· · · · · · ·Q.· But let me ask you this, was it a

19· ·common practice for members of the Building

20· ·Department to report something they would see that

21· ·they thought might be a violation of the fire Code

22· ·to their colleagues at the Fire Department?

23· · · · · · ·A.· Yes, it was common.

24· · · · · · ·Q.· And would the Fire Department do the

25· ·same thing?· What I mean is, if they saw something

·1· ·that they thought was a violation of the Property

·2· ·Standards By-Law or the Building Code, did they

·3· ·report these to the Building Department?

·4· · · · · · ·A.· Normally they did.

·5· · · · · · ·Q.· Okay.· So it wasn't an uncommon

·6· ·thing?

·7· · · · · · ·A.· No.

·8· · · · · · ·Q.· Did it happen that the Building

·9· ·Department and the Fire Department would conduct

10· ·inspections at the same time?

11· · · · · · ·A.· Sometimes yes.

12· · · · · · ·Q.· And in what circumstances would that

13· ·be done?

14· · · · · · ·A.· Whenever one of the other wanted the

15· ·other side to come along for their point of view,

16· ·for the expertise in that area.

17· · · · · · ·Q.· So I gather then it was a common

18· ·practice for both departments to share information

19· ·about their inspections?

20· · · · · · ·A.· Yes.

21· · · · · · ·Q.· Okay.· If we take a look at tab 74,

22· ·sir, that is Exhibit No. 175.· This is the Notice

23· ·of Violation.· And if we could just go to the

24· ·second page, because the first page is an unsigned

25· ·version of the note whereas the second page is a

·1· ·signed version.· If we go to the bottom we see a

·2· ·signed version by Mr. Allard and the -- and it's

·3· ·signed also by the recipient, the owner of the

·4· ·mall.· So I gather that on October 24th Mr. Allard

·5· ·issued this notice.· Had you seen this notice

·6· ·prior to us showing it to you, sir?

·7· · · · · · ·A.· No.

·8· · · · · · ·Q.· Okay.· So again you indicated to us

·9· ·you weren't involved in the drafting of it.· Your

10· ·only involvement was Mr. Allard telling you he was

11· ·taking that step?

12· · · · · · ·A.· That's right.

13· · · · · · ·Q.· Did Mr. Allard discuss with you the

14· ·specific violation that he would be including in

15· ·this notice?

16· · · · · · ·A.· He didn't, no.· He didn't talk to me

17· ·about it.· I would have -- I believe I would have

18· ·known which one it would have been or which

19· ·couple.

20· · · · · · ·Q.· Given the work, and your experience,

21· ·and your knowledge of the Property Standards

22· ·By-Law?

23· · · · · · ·A.· Yes.

24· · · · · · ·Q.· Okay.· Now if we go to tab 58, and

25· ·that is Exhibit No. 11-137.· So this is a letter

·1· ·that is actually written by Mr. Tom Derreck, the

·2· ·CAO; and it's dated October 30th, 2006; it's

·3· ·addressed to Bob Nazarian, Eastwood Mall Inc.

·4· · · · · · ·MS. EFFENDI:· And if we go to the second

·5· ·page, Ms. Kuka.

·6· · · · · · ·BY MS. EFFENDI:

·7· · · · · · ·Q.· We'll see that you were actually

·8· ·copied on it, among a list of other people

·9· ·including the Mayor, Ms. Morin, Mr. Officer and

10· ·Mr. Allard.

11· · · · · · ·A.· Yes.

12· · · · · · ·Q.· So I gather then you received a copy

13· ·of this letter and it actually encloses the notice

14· ·of violation?

15· · · · · · ·A.· Yes.

16· · · · · · ·Q.· And if we go to the first page of

17· ·the letter we see that Mr. Derreck is advising the

18· ·owner of the mall that Council basically directed

19· ·that the owner of the mall be provided with

20· ·written notice of the following, and he outlines

21· ·in there the inspections that were conducted and

22· ·then a variety of different items, including:

23· · · · · · ·"The cost of all consequential and

24· · · · · · ·accumulating damage, loss and/or injury

25· · · · · · ·experienced by the Elliot Lake Public

·1· · · · · · ·Library emanating from internal as well as

·2· · · · · · ·external failures will rest with the mall

·3· · · · · · ·owners;"

·4· ·Or giving him notice that that might happen.· And

·5· ·then that the rent for the library will be

·6· ·stopped.

·7· · · · · · ·And then he also provides him that on

·8· ·number 4 he indicates;

·9· · · · · · ·"Any remedy currently and/or intended to

10· · · · · · ·be applied by the owner shall first be

11· · · · · · ·proposed to and approved by the City's

12· · · · · · ·Building, Property Standards, Fire and

13· · · · · · ·Health and Safety officials."

14· · · · · · ·Was it unusual, sir, for the CAO to be

15· ·sending the notice to the owner of the mall

16· ·instead of the CBO?· Because the CBO, Mr. Allard,

17· ·is the one that signed the notice, is that

18· ·correct?

19· · · · · · ·A.· Yes.

20· · · · · · ·Q.· So was this unusual?· When you got

21· ·this letter did you find it unusual that it was

22· ·the CAO that was actually sending the letter and

23· ·not the CBO?

24· · · · · · ·A.· Well I guess he would have the right

25· ·to do it.· I don't think it would normally be done

·1· ·that way, but I didn't think nothing of it when he

·2· ·did do it.

·3· · · · · · ·Q.· So is it fair to say then that given

·4· ·that it was the CAO, who I understand was kind of

·5· ·the highest person at the City in terms of staff,

·6· ·is it fair to assume that this matter was taken

·7· ·seriously by the City?

·8· · · · · · ·A.· Yes.

·9· · · · · · ·Q.· Okay.

10· · · · · · ·MS. EFFENDI:· And just for the record,

11· ·Mr. Commissioner, if we go to the third page of

12· ·the document, you'll see that it's the Notice of

13· ·Violation that was attached to the letter.

14· · · · · · ·BY MS. EFFENDI:

15· · · · · · ·Q.· If we now go, sir, to tab 89 and

16· ·that is Exhibit No. 11-138.· So this document at

17· ·tab 89 an actually a letter from Mr. Officer on

18· ·November 1st, so a few days later, to Bob Nazarian

19· ·of Eastwood Mall.· And it's entitled "Fire

20· ·Inspection - Eastwood Mall Inc."· And then you see

21· ·that at the bottom it's copied to Mr. Derreck, Mr.

22· ·Allard and Ms. Morin.

23· · · · · · ·MS. EFFENDI:· If we could just scroll

24· ·there, Ms. Kuka, so that people in the audience

25· ·can see Ms. Morin was copied on there.

·1· · · · · · ·BY MS. EFFENDI:

·2· · · · · · ·Q.· And in this letter Mr. Officer

·3· ·advises the owner of the following, "As a result

·4· ·of a concern brought forward, an inspection of the

·5· ·property was conducted..."· And I stop here for a

·6· ·minute.· That I understanding is in accordance

·7· ·with this note that we just looked at a few

·8· ·minutes ago, where it appears that Mr. Barnes went

·9· ·to the mall and inspected it following the

10· ·complaint of Mr. Allard?

11· · · · · · ·A.· Yes.

12· · · · · · ·Q.· And then it goes on to say:

13· · · · · · ·"...at which time contraventions of the

14· · · · · · ·Ontario Fire Code were noted.

15· · · · · · ·Descriptions of the noted violations are

16· · · · · · ·listed below."

17· · · · · · ·It talks about fire separation.· I'm not

18· ·going to read them.· And then he goes on to say:

19· · · · · · ·"In this regard, repair or replace the

20· · · · · · ·proofing material that has been removed or

21· · · · · · ·dislodged· from the structure steel of the

22· · · · · · ·mall roof/parking area in accordance with

23· · · · · · ·the requirements of the Ontario Building

24· · · · · · ·Code."

25· · · · · · ·So he's telling the owner that he needs

·1· ·to replace them.

·2· · · · · · ·And then he goes on to say, "A building

·3· ·pelter is required."· Was a building permit, Mr.

·4· ·Clouthier, sought from the owner to install the

·5· ·fireproofing material in 2006 or at any point

·6· ·later in time?

·7· · · · · · ·A.· I'm not sure.

·8· · · · · · ·Q.· Okay.

·9· · · · · · ·A.· I believe maybe later.· I'm not sure

10· ·if they tried to get one at that time I'm not

11· ·sure.

12· · · · · · ·Q.· And I gather that if the building

13· ·permit application came in you would have dealt

14· ·with it or Mr. Allard would have dealt with it?

15· · · · · · ·A.· Normally all plans that come in I

16· ·would review.

17· · · · · · ·Q.· Okay.

18· · · · · · ·A.· But there is certain plans,

19· ·especially if it could be a safety issue, or other

20· ·reasons, that I could be out in the field and it

21· ·would be -- if the proper information is there it

22· ·could bypass me and go right to the CBO.· He can

23· ·review that, know that that's something that needs

24· ·to be done and can sign that so that permit could

25· ·go out and I would not see that permit.

·1· · · · · · ·Q.· So as far as you know during this

·2· ·time period no building permit was applied for?

·3· · · · · · ·A.· Not that I'm aware of.

·4· · · · · · ·Q.· And just so I'm clear on your

·5· ·answer, you think maybe later on they may have

·6· ·applied for one?

·7· · · · · · ·A.· I remember there were some beams

·8· ·sprayed at some, I don't know when that was.

·9· · · · · · ·Q.· Would that have been after 2006

10· ·closer to today's date?

11· · · · · · ·A.· I believe it was after.

12· · · · · · ·Q.· And do you recall whether or not you

13· ·would have been the one processing the building

14· ·permit application?

15· · · · · · ·A.· No, I didn't process that.

16· · · · · · ·Q.· Okay.· So I gather it would have

17· ·been either Mr. Allard or Mr. Ewald.

18· · · · · · ·A.· That's correct.

19· · · · · · ·Q.· Now, if we go to tab 91, that is

20· ·Exhibit No. 11-24.· So this is Exhibit No. 11-24

21· ·and we see that it's a letter dated November 13,

22· ·2006, and it's actually authored by Tom Turner.

23· ·Thomas Turner who was I understand the mall

24· ·manager of Eastwood Mall?

25· · · · · · ·A.· Yes.

·1· · · · · · ·Q.· And you'll see that he appears to be

·2· ·responding to the letter that he received from Mr.

·3· ·Derreck, which was copied to you that we looked at

·4· ·earlier, in closing the notice of violation.· He

·5· ·advises him -- he thanks him for the opportunity

·6· ·for meeting with him, and "...to report, in

·7· ·accordance with the requirements of your Building

·8· ·Department, on our action plan regarding leaks in

·9· ·the roof of the mall."· Were you present at this

10· ·meeting that he's referencing to, Mr. Clouthier?

11· · · · · · ·A.· No.

12· · · · · · ·Q.· Do you know whether Mr. Allard would

13· ·have attended that meeting?

14· · · · · · ·A.· I'm not aware.

15· · · · · · ·Q.· And then he goes on to say that he's

16· ·attaching a project timetable covering the repairs

17· ·that they intend to complete before the snow

18· ·conditions stop our work.· And he says:

19· · · · · · ·"As you are aware, this roof has leaked

20· · · · · · ·for the last 25 years and during that time

21· · · · · · ·a multitude of methods were used to plug

22· · · · · · ·joints and plug holes."

23· · · · · · ·Let me stop here for a second.· Again in

24· ·light of the evidence you have given us so far,

25· ·you weren't aware of the fact that the mall had

·1· ·leaked basically since opening?

·2· · · · · · ·A.· No.

·3· · · · · · ·Q.· And then he goes on to say that:

·4· · · · · · ·"Contrary to previous practices, our

·5· · · · · · ·company has decided to repair the roof

·6· · · · · · ·completely.· As much as we may wish

·7· · · · · · ·otherwise this is not an overnight

·8· · · · · · ·project.· We believe that the end of

·9· · · · · · ·August of 2007 might be a reasonable time

10· · · · · · ·to expect completion of the work."

11· · · · · · ·And he described their plan which

12· ·includes using new product, that DOW Corning

13· ·product; replacing the expansion joint and;

14· ·removing the drains and; cutting up the epoxy and;

15· ·repairing damaged cement areas.

16· · · · · · ·Would it the fair to say, sir that in

17· ·light of your previous testimony, all of these

18· ·items would have required a building permit in

19· ·order to be conducted?

20· · · · · · ·A.· I believe so.

21· · · · · · ·Q.· You see that at the top there.

22· · · · · · ·MS. EFFENDI:· If we go to the top, Ms.

23· ·Kuka.

24· · · · · · ·BY MS. EFFENDI:

25· · · · · · ·Q.· It appears that this letter was

·1· ·copied and -- actually sent by Mr. Derreck.· I'm

·2· ·sure the Commission will be hearing evidence that

·3· ·this is the handwriting of Mr. Derreck.· And he

·4· ·sent a copy for "follow-up as appropriate" to Mr.

·5· ·Allard.· Did you get a copy of this letter when it

·6· ·was sent to Mr. Allard?

·7· · · · · · ·A.· No, I didn't.

·8· · · · · · ·Q.· Are you aware of the steps that were

·9· ·taken by Mr. Allard when he received this letter?

10· · · · · · ·A.· No.

11· · · · · · ·Q.· So Mr. Allard didn't ask you to

12· ·conduct any follow-up inspections or -- in respect

13· ·of the mall, or those plans of repairs that the

14· ·owner intended to carry out?

15· · · · · · ·A.· No, he didn't.

16· · · · · · ·Q.· I understand that from your previous

17· ·evidence that Mr. Swan started working in December

18· ·of 2006, is that correct.

19· · · · · · ·A.· Yes.

20· · · · · · ·Q.· Do you whether or not Mr. Swan was

21· ·involved in any of the follow-up steps to the 2006

22· ·notice of violation that would have taken place?

23· · · · · · ·A.· I don't know that he was.· I

24· ·wouldn't think that he would be but I'm not aware.

25· · · · · · ·Q.· And why do you say that?

·1· · · · · · ·A.· Well just Mr. Allard was handling

·2· ·it.· He hadn't contacted -- dealt with me after

·3· ·the time in October when he was dealing with it.

·4· ·So I don't think that the fact that Mr. Swan came

·5· ·on board in December that he was going to start

·6· ·giving him stuff all of a sudden, but he could

·7· ·have.

·8· · · · · · ·Q.· So as far as you know this file, so

·9· ·the file being the notice of violation in 2006,

10· ·and all of the steps following that inspection

11· ·were really handled by Mr. Allard on his own?

12· · · · · · ·A.· As far as I know, yes.

13· · · · · · ·Q.· Okay.

14· · · · · · ·MS. EFFENDI:· If we could go, Mr. Kuka,

15· ·to Exhibit No. 11-139.

16· · · · · · ·BY MS. EFFENDI:

17· · · · · · ·Q.· That is tab 37, sir, of your brief.

18· ·And we're now moving ahead in time.· So that

19· ·letter that we just looked at was November.· Now

20· ·we're looking at December of 2006.· I'm not going

21· ·to read this entire e-mail, but it's an e-mail

22· ·from Ms. Morin to members of the library Board in

23· ·December 2006.· And she outlines in here how the

24· ·library continues to experience leaks.· She

25· ·indicates there's been leaks on November 6, 7, 8,

·1· ·9, 13, 14, 29, December 11, 12, 13, and 14.· And

·2· ·that there's been a variety of different things

·3· ·done and steps taken such as putting buckets and

·4· ·tarps and things like that.· Were you aware, sir,

·5· ·that the library continued to have leaks following

·6· ·your inspection in October 2006?

·7· · · · · · ·A.· No, I wasn't aware of it.

·8· · · · · · ·Q.· Did you conduct any follow-up

·9· ·inspections at the library after your October 2006

10· ·inspection?

11· · · · · · ·A.· No, I didn't go back.

12· · · · · · ·Q.· And is that because you understood

13· ·that Mr. Allard was in charge of that file and was

14· ·taking care of -- taking care and making sure that

15· ·all of the steps were taken by the owner to

16· ·remediate the problems?

17· · · · · · ·A.· As far as I knew, yes.

18· · · · · · ·Q.· We're going to switch volumes, sir.

19· ·So if you can take your volume 8.· We'll take a

20· ·look at Exhibit No. 2348.· And you will find that,

21· ·sir, at tab 102.· If you go to tab 102 you should

22· ·see a stapled page or something at the back of

23· ·102.· Do you have that?

24· · · · · · ·A.· Yes.

25· · · · · · ·Q.· Okay.· So that's the stapled page is

·1· ·the one I want us to look at.· You'll see this is

·2· ·an e-mail from Tom Turner to Mr. Allard dated

·3· ·January 15th, 2007.· And Mr. Turner tells Mr.

·4· ·Allard, "I wish to confirm our telephone

·5· ·conversation of this date."· Do you have that in

·6· ·front of you, sir?

·7· · · · · · ·A.· Perhaps not the one you're talking

·8· ·about.· Okay, I do now, here.· I'll look off here.

·9· · · · · · ·Q.· Okay.· He says that he's confirming

10· ·the conversation that he's had with Mr. Allard,

11· ·that's Mr. Turner.· And he tells him that at

12· ·present they.

13· · · · · · ·"...are awaiting Caughill and Associates

14· · · · · · ·to attend a meeting at the mall and to

15· · · · · · ·begin an on-site inspection of the roof

16· · · · · · ·and to identify any fire retarding

17· · · · · · ·materials needing replacement."

18· ·It says:

19· · · · · · ·"As you are aware, we have no engineers in

20· · · · · · ·a town and as a result I am at the mercy

21· · · · · · ·of outside the contractors.· I expect them

22· · · · · · ·to be here next week and begin work the

23· · · · · · ·same day.· I will advise you when I have

24· · · · · · ·the appointment fixed with them."

25· · · · · · ·And then if we go at the bottom of the

·1· ·page there's handwritten notes and it's signed,

·2· ·"Syl".· So is it fair to assume that Mr. Allard is

·3· ·the one that wrote this note, Mr. Clouthier?

·4· · · · · · ·A.· Yes, that's his writing.

·5· · · · · · ·Q.· And he says:

·6· · · · · · ·"Follow-up regarding the structural report

·7· · · · · · ·from P.ENG. [professional engineer] listed

·8· · · · · · ·in the order to comply - do further

·9· · · · · · ·follow-up on Thursday, January 25, 2007."

10· · · · · · ·Again I assume, Mr. Clouthier, from your

11· ·previous evidence that you were not involved in

12· ·these communications with Mr. Turner?

13· · · · · · ·A.· No.

14· · · · · · ·Q.· And you weren't made aware of them

15· ·by Mr. Allard?

16· · · · · · ·A.· No.

17· · · · · · ·Q.· I just noted this now, this is

18· ·January 15th, 2007.· I gather -- I'm just curious

19· ·as to what kind of work, and I imagine that we can

20· ·ask the question to Mr. Turner, but I'm just

21· ·curious as to what kind of work a mall owner could

22· ·have done in January of 2007 given that it was the

23· ·middle of winter?

24· · · · · · ·A.· I'm not sure what his plan was.· I

25· ·wouldn't think that he'd be doing too much at that

·1· ·time.

·2· · · · · · ·Q.· And in his e-mail Mr. Turner

·3· ·references the firm Caughill and Associates.· I

·4· ·understand that Mr. Bruce Caughill is the one that

·5· ·is the principal owner of that firm?

·6· · · · · · ·A.· Yes.

·7· · · · · · ·Q.· And if we go -- to, before jumping

·8· ·into the discussion about Mr. Caughill's

·9· ·involvement.· If we could go to tab 109, and that

10· ·is Exhibit No. 162.· And that is actually a memo

11· ·from Mr. Caughill to Mr. Allard copying Tom turner

12· ·and the Chief, Paul Officer.· And he indicates on

13· ·February 22nd, 2007, that's the date of the memo.

14· ·He said that he's now been retained by Eastwood

15· ·Mall to provide them assistance in relation to the

16· ·notice of violation.· And he says that he met with

17· ·Mr. Turner on site to review the notice of

18· ·violation on February 20th, 2007.

19· · · · · · ·And then he goes on to say:

20· · · · · · ·I provided Mr. Turner with a copy of a

21· · · · · · ·report that we had in our files:

22· · · · · · ·Structural Condition Assessment prepared

23· · · · · · ·in May 1999 by Halsall Associates Limited.

24· · · · · · · · · I believe this report addressed the

25· · · · · · ·water penetration and possible

·1· · · · · · ·deterioration of structure that is the

·2· · · · · · ·subject of the current Notice of Violation

·3· · · · · · ·...

·4· · · · · · · · · I have suggested that Mr. Turner

·5· · · · · · ·provide a copy of this report for your

·6· · · · · · ·records.

·7· · · · · · · · · We will be working with Algo Centre

·8· · · · · · ·Mall as they continue to repair the water

·9· · · · · · ·leakage paths and any damaged

10· · · · · · ·members/components they come across.

11· · · · · · · · · An overall assessment will be

12· · · · · · ·conducted and a report submitted within

13· · · · · · ·six months.· Copies of inspection reports

14· · · · · · ·will be submitted as they occur.

15· · · · · · · · · Should any changes in our

16· · · · · · ·relationship with Algo Centre Mall

17· · · · · · ·(Eastwood Mall Inc.) change in the

18· · · · · · ·interim, we will advise you immediately."

19· · · · · · ·Did you know that Mr. Bruce Caughill had

20· ·been hired by Eastwood Mall to assist them in the

21· ·repairs.

22

23· · · · · · ·A.· No.

24· · · · · · ·Q.· Okay.· So I gather then that you

25· ·wouldn't have been familiar with the fact that the

·1· ·relationship between Mr. Caughill and Mr. Nazarian

·2· ·of Eastwood Mall ended in July of 2007?

·3· · · · · · ·A.· No.

·4· · · · · · ·Q.· Did you know Mr. Bruce Caughill?

·5· · · · · · ·A.· Somewhat, yes.· I've had dealings

·6· ·with him since coming here to work.· And I've

·7· ·e-mailed and talked to him on the phone on other

·8· ·projects.

·9· · · · · · ·Q.· Were the projects that you had

10· ·dealings with him in relation to the mall?

11· · · · · · ·A.· No.

12· · · · · · ·Q.· And you have see here reference to a

13· ·structural condition assessment, this Halsall

14· ·report.

15· · · · · · ·MS. EFFENDI:· And, Ms. Kuka, if we can

16· ·bring up this exhibit which we've seen now many

17· ·times, Exhibit No. 70.

18· · · · · · ·BY MS. EFFENDI:

19· · · · · · ·Q.· And I'll ask you, Mr. Clouthier,

20· ·whether or not you had ever seen this document

21· ·before.· That is the structural condition

22· ·assessment which Mr. Caughill is speaking of in

23· ·his memo.· Did you see this report at the time?

24· · · · · · ·A.· I've never seen this before.

25· · · · · · ·Q.· So is it fair to say then, Mr.

·1· ·Clouthier, you didn't do any follow-up after the

·2· ·October 19, 2006 inspection?· You believed Mr.

·3· ·Allard was the one taking care of that file?

·4· · · · · · ·A.· Yes.

·5· · · · · · ·Q.· Did you inquire of Mr. Allard, out

·6· ·of curiosity or otherwise, as to what were those

·7· ·steps that he took or what he was doing with the

·8· ·matter?

·9· · · · · · ·A.· No, it wouldn't be my place to ask

10· ·my supervisor if he was doing his work.

11· · · · · · ·Q.· Fair enough.· Do you recall visiting

12· ·the library in 2007?

13· · · · · · ·A.· Perhaps for an inspection.

14· · · · · · ·Q.· Okay.· And do you remember what

15· ·happened when you visited the library in 2007?

16· · · · · · ·A.· I don't think I went to the library

17· ·in 2007.

18· · · · · · ·Q.· You don't think you did.· Sorry, I

19· ·understood that you might have.

20· · · · · · ·A.· No.

21· · · · · · ·Q.· So were you aware of the fact, sir,

22· ·that in October of 2007 the library was

23· ·experiencing leaks as bad as October 2006 when you

24· ·visited the library?

25· · · · · · ·A.· I wasn't made aware of that.

·1· · · · · · ·Q.· Now I would like to show, we're

·2· ·going to switch gears a bit.· I'd like to show you

·3· ·a few communications that were provided to us by

·4· ·the City.· And I'd like you to tell the

·5· ·Commissioner whether if you had received these

·6· ·e-mails they would have triggered the enforcement

·7· ·policy for the Property Standards By-Law as being

·8· ·a complaint.· So we're going to start with Exhibit

·9· ·No. 11-133.· And if you want to take a look at the

10· ·paper copy, sir, it's volume 7, tab 80.

11· · · · · · ·MS. EFFENDI:· And in fact, Ms. Kuka,

12· ·what I'm interested in is at the next page of this

13· ·document.· If you go to the bottom of the page.

14· · · · · · ·BY MS. EFFENDI:

15· · · · · · ·Q.· So the second page, sir, of the

16· ·document at tab 80.· And just so we understand

17· ·what this is this is a chain of e-mails.· So we

18· ·have the first e-mail.

19· · · · · · ·MS. EFFENDI:· If we go to the next page,

20· ·Ms. Kuka, just so we see who the author is.

21· · · · · · ·BY MS. EFFENDI:

22· · · · · · ·Q.· You will see this is an e-mail that

23· ·was authored by a Ms. Carolyn Davie.· And then if

24· ·we go back to the previous page we'll see she is

25· ·sending this to Mr. Ken Rastin.· I understand that

·1· ·Mr. Rastin was a Councillor?

·2· · · · · · ·A.· Yes.

·3· · · · · · ·Q.· And then you will see that

·4· ·eventually what happens is Ms. Davie then forwards

·5· ·the response she gets from the Councillor to Ms.

·6· ·Croxson, who then forwards to the library, Ms.

·7· ·Morin.· But what I'm interested in with this

·8· ·document is the actual e-mail of Ms. Davie at the

·9· ·bottom.· She says here, and just so we know, this

10· ·appears to have been an e-mail sent around October

11· ·of 2006, so around the same time where there were

12· ·leaks at the library.· She says to the Councillor:

13· · · · · · ·"Greetings:· My concern, and the concern

14· · · · · · ·of many people, is the deplorable

15· · · · · · ·condition of our public library.· A quick

16· · · · · · ·visit would show you the situation.

17· · · · · · ·Approximately half of the library is

18· · · · · · ·closed due to water damage - people are

19· · · · · · ·afraid that one of these days a car will

20· · · · · · ·come through the roof.· This may be

21· · · · · · ·something you would wish to look into as

22· · · · · · ·it is vitally important to the community

23· · · · · · ·to have a good library.· Oh by the way -

24· · · · · · ·there is only one present member of

25· · · · · · ·council who has a library card - have you

·1· · · · · · ·got one?"

·2· · · · · · ·Sir, if this e-mail would have been sent

·3· ·to the Building Department and you had seen this

·4· ·e-mail, would you have considered it a complaint

·5· ·under the Property Standards By-Law?

·6· · · · · · ·A.· Yes.

·7· · · · · · ·Q.· Let's move on to the next one and

·8· ·the next one is at volume 8, it is Exhibit No.

·9· ·11-161.· And I'll just -- it will pop up on the

10· ·screen so you don't have to pull it if you don't

11· ·want to.

12· · · · · · ·And you'll see I'm interested in the

13· ·bottom part here.· We see that it is an e-mail

14· ·that was sent by Mr. or Ms. S. Pomerleau to the

15· ·info e-mail address at the City, which was later

16· ·sent along by an administrative clerk to Mr.

17· ·Hamilton, Ms. Bray and Mr. Gagnon.· This e-mail is

18· ·in April of 2008.· And it says at the bottom the

19· ·following:

20· · · · · · ·"It has come to my attention that you will

21· · · · · · ·be discussing the library situation on

22· · · · · · ·Monday and also that you have not heard

23· · · · · · ·any complaints from the citizens to

24· · · · · · ·indicate action is necessary!· Please take

25· · · · · · ·note that I am appalled at the condition

·1· · · · · · ·of the library and heartily support a

·2· · · · · · ·relocation to an environment that will

·3· · · · · · ·destroy the precious volumes in our

·4· · · · · · ·current inventory, and which will allow

·5· · · · · · ·the citizens of Elliot Lake safe, healthy

·6· · · · · · ·access to them.· Take action now - before

·7· · · · · · ·we loose who we have!

·8· · · · · · ·Again, Mr. Clouthier, if you received

·9· ·this e-mail, it's not as clear as the previous one

10· ·I'll admit to that, would you have taken any steps

11· ·to inquire as to the nature of these concerns

12· ·being raised?

13· · · · · · ·A.· If it came in as a complaint, yes.

14· · · · · · ·Q.· Okay.· Now if we go to Exhibit No.

15· ·11-162.· And you'll see at the bottom again

16· ·another e-mail that was forward along to Mr.

17· ·Hamilton, Mr. Gagnon and Mr. Bray.· ·This is

18· ·authored by from Claire Diotte-Hart, retired

19· ·teacher, citizen, taxpayer.· And she says the

20· ·following:

21· · · · · · ·"Dear sir:

22· · · · · · · · · I would like to add my comments about

23· · · · · · ·our City library.· It is a shame that such

24· · · · · · ·deplorable conditions in the Mall have

25· · · · · · ·existed for so long and at taxpayer's

·1· · · · · · ·expense, i.e. the damaged books from the

·2· · · · · · ·leaky roof, the tarps purchased to protect

·3· · · · · · ·the books.· As well, patrons of the

·4· · · · · · ·library and employees should not have to

·5· · · · · · ·endure moldy walls and books.

·6· · · · · · · · · Elliot Lake needs this cultural

·7· · · · · · ·institution and I plead with you and our

·8· · · · · · ·Council to take positive action now to

·9· · · · · · ·ensure we continue to have a library."

10· · · · · · ·Again same question, sir, this -- Ms.

11· ·Diotte-Hart appears to be expressing concerns

12· ·about the leaky roof in the library.· If this was

13· ·received by the Building Department would that

14· ·have triggered the Property Standards By-Law

15· ·enforcement process?

16· · · · · · ·A.· If it came in as a complaint we

17· ·would have looked into it.

18· · · · · · ·MS. EFFENDI:· And finally, Ms. Kuka, if

19· ·we can go to Exhibit No. 11-163.

20· · · · · · ·BY MS. EFFENDI:

21· · · · · · ·Q.· Another e-mail in April of 2008 and

22· ·this e-mail was sent by Cindy Britton-Foster and

23· ·it says the following:

24· · · · · · ·"Hello to the Mayor and Councillors,

25· · · · · · · · · I am writing to express my concerns

·1· · · · · · ·about the public Library.· The book

·2· · · · · · ·collection is being decimated by the slow

·3· · · · · · ·dripping leaks.· I am aware that the

·4· · · · · · ·library is looking for a new location and

·5· · · · · · ·just want to add a voice to support this

·6· · · · · · ·move.· I think we have the best library in

·7· · · · · · ·materials of staff and choice in Northern

·8· · · · · · ·Ontario.· I know the flat roof problem is

·9· · · · · · ·throughout the mall, however it's a shame

10· · · · · · ·as the staff try to jerryrig devices to

11· · · · · · ·keep the books protected.

12· · · · · · · · · Thanks for listening."

13· · · · · · ·Again, Mr. Clouthier, same question.· If

14· ·this had been sent to the Building Department

15· ·would it have triggered the Property Standards

16· ·By-Law?

17· · · · · · ·A.· It would have -- we would have

18· ·investigated that, yes.

19· · · · · · ·Q.· And is it fair to say that if Mr.

20· ·Hamilton, or Mr. Gagnon, or Ms. Bray had provided

21· ·that to the Building Department that you would

22· ·have acted the same way you just indicated to us

23· ·with respect to those four e-mails and

24· ·communication?

25· · · · · · ·A.· Yes.

·1· · · · · · ·Q.· Do you have any explanation as to

·2· ·why the Building Department wasn't forward these

·3· ·communications?

·4· · · · · · ·A.· No, I don't know why, no.

·5· · · · · · ·Q.· Am I right that the Building

·6· ·Department is across the hall from the CAO's

·7· ·office and the Mayor's office?

·8· · · · · · ·A.· Yes, it is.

·9· · · · · · ·Q.· Okay.· Now I'd like to change gears

10· ·again and this time take a look at some issues in

11· ·respect of building permits.· And we've talked

12· ·about building permits a bit with respect to the

13· ·mall.· So if you could have in front of you volume

14· ·8.

15· · · · · · ·MS. EFFENDI:· And we're going to take a

16· ·look, Ms. Kuka, at Exhibit No. 3393.

17· · · · · · ·BY MS. EFFENDI:

18· · · · · · ·Q.· And that will be at tab 119, sir.

19· · · · · · ·So this is a letter that was sent and we

20· ·see that it was copied to you at the bottom here

21· ·by -- it was sent be Mr. Allard to Brian England,

22· ·c/o Eastwood Mall.· Am I right that Mr. England

23· ·became the mall manager at that point?

24· · · · · · ·A.· Yes.

25· · · · · · ·Q.· And he replaced Mr. Turner?

·1· · · · · · ·A.· I believe so, yes.

·2· · · · · · ·Q.· And the subject of this letter in

·3· ·August of 2007 is "Board on Board P.T.

·4· ·Fence-Eastwood Mall."· And Mr. Allard "Attached a

·5· ·copy of the Plans Examination Summary for the

·6· ·above noted project."

·7· ·And he said:

·8· · · · · · ·"In accordance with the process set out in

·9· · · · · · ·clause 2.4.1.1B(1)(b) of the Ontario

10· · · · · · ·Building Code, we regret to advise you

11· · · · · · ·that a building permit will not be issued

12· · · · · · ·until all outstanding items identified in

13· · · · · · ·the plans examination summary, are

14· · · · · · ·resolved to our mutual satisfaction."

15· · · · · · ·MS. EFFENDI:· And if we go to the next

16· ·page, Ms. Kuka.

17· · · · · · ·BY MS. EFFENDI:

18· · · · · · ·Q.· We see that there is a number of

19· ·requirements that Mr. Allard sets out in this plan

20· ·of examination.· Can you tell us, do you know what

21· ·this was about?

22· · · · · · ·A.· Yes, it was a storage area -- a

23· ·storage room that was built attached to the

24· ·mall --

25· · · · · · ·Q.· Okay.

·1· · · · · · ·A.· -- underneath a cement walkway.

·2· · · · · · ·Q.· And what was this storage?· Was it

·3· ·made of wood, concrete?

·4· · · · · · ·A.· It was made out of pressure treated

·5· ·wood.

·6· · · · · · ·Q.· And how was this storage room

·7· ·discovered by the City?

·8· · · · · · ·A.· I believe I drove by and caught them

·9· ·building it without a permit and it was probably

10· ·about 90% done at the time.

11· · · · · · ·Q.· Okay.· And then you came back and

12· ·reported the matter to Mr. Allard?

13· · · · · · ·A.· Yes.

14· · · · · · ·Q.· Okay.· And I gather that you then

15· ·went on to advise them that they needed a building

16· ·permit before continuing with the construction?

17· · · · · · ·A.· Yes.· I gave them an order to get a

18· ·building permit or to take it down.· And I believe

19· ·Mr. Allard gave a stop work order, which only a

20· ·Chief Building Official can do, and it was to stop

21· ·the work immediately.

22· · · · · · ·Q.· And in fact I think we do have that

23· ·but it appears to have been issued several months

24· ·later.· If you take a look, sir, at tab 124 of

25· ·your book, and it's Exhibit No. 3397.

·1· · · · · · ·THE COMMISSIONER:· Where was this being

·2· ·built, sir.· Ground level?· Parking level?

·3· · · · · · ·THE WITNESS:· It was at ground level at

·4· ·one side.· It would have been -- it was the first

·5· ·level.

·6· · · · · · ·THE COMMISSIONER:· Not on the parking

·7· ·deck?

·8· · · · · · ·THE WITNESS:· One level below the

·9· ·parking deck.

10· · · · · · ·THE COMMISSIONER:· One level below.

11· · · · · · ·BY MS. EFFENDI:

12· · · · · · ·Q.· And we see this order to comply

13· ·here, sir, and it indicates at the bottom that, "A

14· ·building permit is required for the Storage

15· ·enclosure on lower level of Mall."· And if we go

16· ·to the next page we see that it's signed by you?

17· · · · · · ·A.· Yes.

18· · · · · · ·Q.· And it appears to be dated November

19· ·9, 2007.· So is this the stop -- the order to

20· ·comply you were speaking of?

21· · · · · · ·A.· Yes.

22· · · · · · ·Q.· So I gather then do you know what

23· ·happened between the August and the November

24· ·period?

25· · · · · · ·A.· I would imagine that he was told

·1· ·likely by me when I -- if I had seen him I would

·2· ·have told him verbally that he's -- his project

·3· ·requires a permit.

·4· · · · · · ·Q.· Okay.

·5· · · · · · ·A.· And he would have likely told me

·6· ·he'd be in to get one, and he didn't.· And it took

·7· ·us, you know, some time to go by before we

·8· ·realized that he hadn't come into the office to

·9· ·get that permit.

10· · · · · · ·Q.· And was the structure completely

11· ·built by then?

12· · · · · · ·A.· It was just about built.

13· · · · · · ·THE COMMISSIONER:· Are those dates

14· ·accurate?· Is that the 9th of November or the 11th

15· ·of September.

16· · · · · · ·THE WITNESS:· That's a good question but

17· ·I'm not sure of it.· It makes more sense that it's

18· ·September but it could have been November, I'm not

19· ·sure.

20· · · · · · ·MS. EFFENDI:· The only reason I say,

21· ·November, Mr. Commissioner -- if we go to Exhibit

22· ·No. 3402.

23· · · · · · ·BY MS. EFFENDI:

24· · · · · · ·Q.· That's in your book, sir, at tab

25· ·135.· This is the stop work order that you were

·1· ·speaking of, Mr. Clouthier, that would've had to

·2· ·be signed by the CBO, right?

·3· · · · · · ·A.· Correct.

·4· · · · · · ·Q.· And we see that the date here

·5· ·appears to be November 9, 2007?

·6· · · · · · ·A.· And if the other one said that they

·7· ·were likely made on the same day and posted at the

·8· ·same time.

·9· · · · · · ·Q.· And in fact we do have a picture of

10· ·it being posted and that's the next tab in your

11· ·book, tab 136.

12· · · · · · ·MS. EFFENDI:· And, Ms. Kuka, that's the

13· ·next Exhibit No. 3403.

14· · · · · · ·BY MS. EFFENDI:

15· · · · · · ·Q.· So I gather that you would have

16· ·delivered the notice and the stop work order, and

17· ·posted it on the structure?· It appears to be

18· ·posted on the wood here.

19· · · · · · ·A.· Yes.

20· · · · · · ·Q.· And you would have taken a picture

21· ·of it?

22· · · · · · ·A.· Yes.

23· · · · · · ·Q.· I understand that following that

24· ·there were communications between the Building

25· ·Department and an architect that was hired by

·1· ·Eastwood Mall, John Clinckett, do you recall that?

·2· · · · · · ·A.· Yes.

·3· · · · · · ·Q.· Okay.· If we could go to tab 137 of

·4· ·your book, Exhibit No. 3404

·5· · · · · · ·MS. EFFENDI:· And, Ms. Kuka, if we could

·6· ·go to the second -- actually the page that ends

·7· ·with 5 for that exhibit.

·8· · · · · · ·BY MS. EFFENDI:

·9· · · · · · ·Q.· So this is a letter from Mr. Allard

10· ·where he describes to him basically, as I

11· ·understand it, the requirement under the Building

12· ·Code in order to build a small storage area like

13· ·they want to do.· And he advises Mr. Clinckett of

14· ·those requirements.· And in fact if we go to the

15· ·next page we see that you were copied on it.· So I

16· ·gather you were involved in this matter in

17· ·ensuring that the owner was going to follow the

18· ·Building Code requirements?

19· · · · · · ·A.· Yes.

20· · · · · · ·Q.· And do you recall what happened?

21· ·Because this is kind of the last thing we get on

22· ·this file.· Do you know what happened to the

23· ·storage structure?

24· · · · · · ·A.· It eventually was taken down.

25· · · · · · ·Q.· So they weren't able -- they were

·1· ·not able to meet the Building Code requirements.

·2· · · · · · ·A.· It didn't comply with the Building

·3· ·Code whatsoever.· So unless they were going to

·4· ·change it to comply with the Building Code it had

·5· ·to be removed, so it ended up being removed.

·6· · · · · · ·Q.· And was it removed on the order of

·7· ·the City, do you know?

·8· · · · · · ·A.· It was removed because we put the

·9· ·order on it, yes.

10· · · · · · ·THE COMMISSIONER:· But it wasn't the

11· ·City removing it.

12· · · · · · ·THE WITNESS:· No, no, they took it down.

13· · · · · · ·BY MS. EFFENDI:

14· · · · · · ·Q.· Now if we could go again, switching

15· ·to a different issue.· If we could go to tab 150

16· ·of your book, Exhibit No. 161.· This is an e-mail

17· ·that is dated February 25, 2008.· And it's

18· ·authored by Dale Swan, who was the Building

19· ·Inspector at the Building Department at the time,

20· ·to Mr. Brian England, who I understand as you

21· ·indicated to us was the manager of the mall.· And

22· ·the subject is "vibrating parking lot".· And he

23· ·writes the following, Mr. Swan:

24· · · · · · ·"Hi Brian

25· · · · · · ·Just a quick note:· Our complaints

·1· · · · · · ·department in City Hall received a concern

·2· · · · · · ·regarding excessive vibration to the

·3· · · · · · ·rooftop parking lot.· I realize this may

·4· · · · · · ·be normal and may not be of concern but, I

·5· · · · · · ·must pass this information on to you.· I

·6· · · · · · ·suppose it may be worse than usual?"

·7· · · · · · ·Were you aware of this complaint that

·8· ·the Building Department, Mr. Clouthier, received?

·9· · · · · · ·A.· No I wasn't.

10· · · · · · ·Q.· Do you know if Mr. Allard would have

11· ·been aware of it?

12· · · · · · ·A.· No, I don't know if he was made

13· ·aware of it or not.

14· · · · · · ·Q.· Do you know why Mr. Swan would have

15· ·taken the steps to send this e-mail instead of

16· ·going ahead and conducting an inspection at the

17· ·mall?

18· · · · · · ·A.· I don't know why, no.

19· · · · · · ·Q.· And if you had been in Mr. Swan's

20· ·shoes and had received this complaint what would

21· ·you have done?

22· · · · · · ·A.· I didn't receive it, but I might

23· ·have went to my CBO and brought it to his

24· ·attention.

25· · · · · · ·Q.· Okay.

·1· · · · · · ·MS. EFFENDI:· And we don't appear, Mr.

·2· ·Commissioner, to have any of the documents

·3· ·surrounding this communication.· That is the only

·4· ·thing we have.

·5· · · · · · ·BY MS. EFFENDI:

·6· · · · · · ·Q.· New moving on a bit in time, Mr.

·7· ·Clouthier, I understand that Mr. Allard left the

·8· ·City in 2008?

·9· · · · · · ·A.· Yes.

10· · · · · · ·Q.· And then I understand that Mr. Ewald

11· ·only started working as a CBO on July 7th, 2008?

12· · · · · · ·A.· Yes.

13· · · · · · ·Q.· And so there was a period of one

14· ·month and a few days that there didn't appear to

15· ·be a CBO.· Who was acting as CBO during that

16· ·period?

17· · · · · · ·A.· I was.

18· · · · · · ·Q.· You were, okay.· Did Mr. Allard,

19· ·prior to -- did he retire?

20· · · · · · ·A.· Yes, he retired.

21· · · · · · ·Q.· So prior to his retirement did he

22· ·brief you on any outstanding files or matters that

23· ·were ongoing at the City?

24· · · · · · ·A.· He didn't.· But Mr. Allard likely

25· ·would have cleaned up everything that he could've

·1· ·cleaned up prior to leaving.· He wouldn't have

·2· ·left anything outstanding I don't believe.· He was

·3· ·quite thorough.

·4· · · · · · ·Q.· Okay.· So as far as you know there

·5· ·was no outstanding matter left for you to take

·6· ·over as acting CBO?

·7· · · · · · ·A.· Nothing that he passed on to me.

·8· · · · · · ·Q.· Okay.· If we can now take a look at

·9· ·tab 181 of your volume 8.· That is Exhibit No.

10· ·303.

11· · · · · · ·MS. EFFENDI:· And if we could go Ms.

12· ·Kuka to page 2979.

13· · · · · · ·BY MS. EFFENDI:

14· · · · · · ·Q.· So this is an order to comply and

15· ·we'll see in a moment that it was dated June 27th,

16· ·2008.· And I would just like to read this portion

17· ·before going to the second page.· You'll see that

18· ·it indicates that the owner must:

19· · · · · · ·"Obtain a building permit for the

20· · · · · · ·construction and demolition being

21· · · · · · ·performed at the above mentioned project

22· · · · · · ·location or remove the construction

23· · · · · · ·described in item no. 1 above and restore

24· · · · · · ·the area to the original state."

25· · · · · · ·And you'll see that in number 1 it

·1· ·describes construction being conducted at the Algo

·2· ·Mall roof deck.· And if we go to the second page

·3· ·we'll see that you are the one that issued the

·4· ·order to comply on June 27, 2008.· You were then I

·5· ·gather acting CBO.

·6· · · · · · ·Do you recall, Mr. Clouthier, what this

·7· ·was about?

·8· · · · · · ·A.· Yes.· I was -- there was a call came

·9· ·in to our department stating that there was work

10· ·going on top of the roof deck at the mall.· And I

11· ·went there because of the complaint or the

12· ·information.· And they were about to do what

13· ·looked like a major job on the roof deck.· There

14· ·were some large compressors up there with hoses

15· ·and jackhammers, and there was a crew up there

16· ·with, you know, six, seven, eight· guys and they

17· ·were about to go about working on the roof.· And I

18· ·thought at that time since I was aware of it and

19· ·responsible that I would -- I put a stop the it

20· ·because it required a building permit.

21· · · · · · ·Q.· So did you -- once you got this

22· ·complaint you went and did an inspection and saw

23· ·what was going on?

24· · · · · · ·A.· Yes.

25· · · · · · ·Q.· Did you speak to anyone who was

·1· ·there on the roof deck?

·2· · · · · · ·A.· Brian England.

·3· · · · · · ·Q.· Okay.· And do you recall what that

·4· ·conversation was?

·5· · · · · · ·A.· That he wasn't to carry out any work

·6· ·without first getting a building permit.· And an

·7· ·engineering architect would have to be involved in

·8· ·the plans for the roof deck getting repaired.

·9· · · · · · ·Q.· And did Mr. England acquiesce to

10· ·this request and stop the work?

11· · · · · · ·A.· He argued with me first and said

12· ·that he didn't need a permit to fix a parking lot,

13· ·to patch a parking lot.· And I told him it was the

14· ·roof of a mall and he does need a permit.

15· · · · · · ·Q.· And do you know who was conducting

16· ·the work up on the roof?

17· · · · · · ·A.· I'm not sure who they were.

18· · · · · · ·Q.· Were they mall maintenance people?

19· · · · · · ·A.· They could have been but I didn't

20· ·really know the mall maintenance people.

21· · · · · · ·Q.· So I gather that Mr. England kind of

22· ·argued with you but then he eventually stopped the

23· ·work?

24· · · · · · ·A.· I left and made this order and went

25· ·back to him and hand delivered it to him, and

·1· ·faxed it to the owner Mr. Nazarian.

·2· · · · · · ·Q.· Okay.· And what steps were taken, as

·3· ·far as you know, because of course you told them

·4· ·to be the work, they needed a building permit.· Do

·5· ·you know whether or not they actually went ahead

·6· ·and applied for a building permit?

·7· · · · · · ·A.· I only gave them a few days on this

·8· ·thing.· It's stating that· by June 30th I wanted

·9· ·them to correct the items or bring in and they

10· ·did.· They brought in an application but they

11· ·didn't have a proper amount of information with

12· ·it.

13· · · · · · ·Q.· Okay.· Sorry, to interrupt you

14· ·there.· Where is it that you always -- the June

15· ·30th.

16· · · · · · ·MS. EFFENDI:· If we can go to the first

17· ·page, Ms. Kuka, so we can see -- the page that

18· ·ends with 2979, the previous page to this one.

19· · · · · · ·BY MS. EFFENDI:

20· · · · · · ·Q.· So we see that the deadline you gave

21· ·them is actually in the black box?

22· · · · · · ·A.· That's correct.

23· · · · · · ·Q.· So you had given them until June

24· ·30th to basically apply for a building permit?

25· · · · · · ·A.· Yes.

·1· · · · · · ·Q.· And as I understood your evidence

·2· ·they did apply for a building permit but it didn't

·3· ·include the necessary support documentation for a

·4· ·building permit to be issued?

·5· · · · · · ·A.· Correct.

·6· · · · · · ·Q.· And we'll take a look at that

·7· ·building permit application in a moment.· Actually

·8· ·why don't we do that now?· If we go to tab 192,

·9· ·sir, of your book.· It's at page that ends with

10· ·94.

11· · · · · · ·MS. EFFENDI:· Ms. Kuka, it's Exhibit No.

12· ·172 the page that ends with 94.· And is in the

13· ·building permit, sir, that they provided to you

14· ·following this order to comply.

15· · · · · · ·A.· Yes, they brought it in to our

16· ·office.· I'm not sure if I was made aware of it.

17· ·It was brought in and I believe Mr. Swan had

18· ·picked it up to look at it and noticed that it

19· ·didn't have the information that was required.

20· ·And I believe that he contacted Mr. England back

21· ·saying that he would require more information to

22· ·get a permit.

23· · · · · · ·Q.· Okay.· So let's dissect some of this

24· ·information that you provided to us.· First of all

25· ·it looks like the project value at the top on the

·1· ·build permit indicated $700,000?

·2· · · · · · ·A.· Yes.

·3· · · · · · ·Q.· And then at the bottom we see that

·4· ·there's a description of the proposed work being

·5· ·waterproofing of top parking deck?

·6· · · · · · ·A.· Yes.

·7· · · · · · ·Q.· And then we see at the bottom that

·8· ·it appears to be signed by Mr. England?

·9· · · · · · ·A.· Yes.

10· · · · · · ·Q.· Okay.· And then -- who wrote

11· ·"cancelled" on it?· Would that have been Mr. Swan,

12· ·your handwriting or someone else?

13· · · · · · ·A.· It's not mine and I'm not sure whose

14· ·handwriting that is.

15· · · · · · ·MS. EFFENDI:· If we go, Ms. Kuka, to

16· ·page 97 of the same document.

17· · · · · · ·BY MS. EFFENDI:

18· · · · · · ·Q.· So a few pages within that tab, sir.

19· ·So this appears to be handwritten note on a memo

20· ·that is entitled "City of Elliot Lake, Building

21· ·Controls Department."· And then it says on the

22· ·left, "D.· Swan, memo to file."· It's in relation

23· ·to the mall.· And we see that at the top it says,

24· ·"Call to Brian England, mall manager.· Call at

25· ·1:45 no answer, no room for message.· Preliminary

·1· ·review insufficient, outdated information, no

·2· ·engineer or architect info."

·3· · · · · · ·Is that the handwriting· of Mr. Swan?

·4· · · · · · ·A.· Yes.

·5· · · · · · ·Q.· So this is what you were telling us

·6· ·basically, Mr. Swan tried to contact Mr. England

·7· ·to tell him, This is not enough for a building

·8· ·permit?

·9· · · · · · ·A.· Correct.

10· · · · · · ·Q.· Before we move on from and --

11· · · · · · ·MS. EFFENDI:· Ms. Kuka, you will not be

12· ·pleased because I'm going to come back to this in

13· ·a moment.· But I would like to go to Exhibit No.

14· ·3422.

15· · · · · · ·BY MS. EFFENDI:

16· · · · · · ·Q.· And that is actually a document,

17· ·sir, that you have at tab 182.· So this is

18· ·actually an e-mail from Mr. Ewald to it appears to

19· ·be Mr. Fred Bauthus.· I understand that Mr.

20· ·Bauthus then became the CAO of the City?

21· · · · · · ·A.· Yes.

22· · · · · · ·Q.· He replaced Mr. Derreck?

23· · · · · · ·A.· That's correct.

24· · · · · · ·Q.· And then the e-mail also seems to

25· ·have been sent to Mr. Hamilton, the Mayor?

·1· · · · · · ·A.· Yes.

·2· · · · · · ·Q.· And it's entitled shopping mall and

·3· ·it's dated July 7th, 2008?

·4· · · · · · ·A.· Yes.

·5· · · · · · ·Q.· So I gather a few days after the

·6· ·building permit application was put in by Mr.

·7· ·England?

·8· · · · · · ·A.· Yes.

·9· · · · · · ·Q.· And Mr. Ewald -- and I believe that

10· ·that was actually the first day of Mr. Ewald's

11· ·employment?

12· · · · · · ·A.· I believe it is, yes.

13· · · · · · ·Q.· He says to Mr. Bauthus and Mr.

14· ·Hamilton:

15· · · · · · ·"Hi Fred,

16· · · · · · ·further to our conversation about the new

17· · · · · · ·roof/parking area over the mall and the

18· · · · · · ·requirement for a building permit,

19· · · · · · ·8.-(1)B.C.A. states 'no person shall

20· · · · · · ·construct or demolish a building or cause

21· · · · · · ·a building to be constructed or demolished

22· · · · · · ·unless a permit has been issued therefore

23· · · · · · ·by the Chief Building Official.'· The word

24· · · · · · ·'construct' means to do anything in the

25· · · · · · ·erection, installation, extension or

·1· · · · · · ·material alteration or repair of a

·2· · · · · · ·building and includes the installation of

·3· · · · · · ·a building unit fabricated or moved from

·4· · · · · · ·elsewhere."

·5· · · · · · ·Brian England dropped off an application

·6· · · · · · ·form but the material submitted is not

·7· · · · · · ·sufficient to issue a permit.· I am

·8· · · · · · ·attempting to contact Brian regarding this

·9· · · · · · ·matter and hopefully we will see a

10· · · · · · ·resolution to this situation in the

11· · · · · · ·future."

12· · · · · · ·It appears that on July 7th Mr. Ewald

13· ·took over this file.· Is that correct?

14· · · · · · ·A.· That's what it looks like, yes.

15· · · · · · ·Q.· So do you recall being involved in

16· ·any steps following you issuing the notice -- the

17· ·order to comply, sorry.

18· · · · · · ·A.· No, he did what was asked.· He had

19· ·stopped the work and brought in information to get

20· ·a building permit, but from that point I was

21· ·acting CBO -- in that instance, and once July 7th

22· ·came Mr. Ewald had taken over what was going on.

23· · · · · · ·Q.· So do you recall having a

24· ·conversation with Mr. Ewald about what had

25· ·occurred in relation to this matter?

·1· · · · · · ·A.· Yes.· I'm not sure if it was the

·2· ·very first day he started.· It looks like he was

·3· ·made aware of this on the first day he started so

·4· ·he might have asked me about it.· Looks like this

·5· ·e-mail is close to 6:00 at night.· I would have

·6· ·been gone from work.· He might have asked me about

·7· ·it the next day or even that day.· I'm not sure.

·8· · · · · · ·Q.· Okay.· And I gather you would have

·9· ·told him that you would have caught them doing the

10· ·work, you had ordered that they stop.

11· · · · · · ·A.· Yeah, I explained what it was about.

12· ·How it came about that we got the complaint.· That

13· ·I went there and an order was given to Mr. England

14· ·and also the owner.

15· · · · · · ·Q.· I forgot to ask you, do you remember

16· ·who made the complaint to the Department?

17· · · · · · ·A.· I wouldn't know because the I don't

18· ·get the complaints.· The Clerk at the front

19· ·receives the complaints and then writes the

20· ·complaints up and gives them to us.· We don't know

21· ·who gives us the complaint.· I don't -- I just go

22· ·and deal with the complaint.

23· · · · · · ·Q.· I gather though that it would be in

24· ·the complaint system that the City has, that

25· ·information?

·1· · · · · · ·A.· Yeah, or someone might have called

·2· ·directly to the main number of City Hall and asked

·3· ·for the Building or By-law Department.

·4· · · · · · ·Q.· Okay.· So the Clerk would be the one

·5· ·that would be made aware author of the complaint?

·6· · · · · · ·A.· She's the one that would get that

·7· ·phone call.

·8· · · · · · ·Q.· Now Mr. Ewald did take some steps,

·9· ·as we will see and as he described in this e-mail,

10· ·but before getting to that if we could go to tab

11· ·189 of your brief and that is Exhibit No. 3427.

12· ·At the bottom of the page -- and you'll see that

13· ·that's an e-mail dated July 16th.· So about a week

14· ·later from that first e-mail that Mr. Ewald sent?

15· · · · · · ·A.· Yes.

16· · · · · · ·Q.· And it is an e-mail between Ms.

17· ·Morin and Ms. Croxson and it's entitled "Building

18· ·Permit".· And Ms. Morin tells Ms. Croxson the

19· ·following.· "I was informed by Fred Bauthus at

20· ·this morning's SMT meeting that the building

21· ·permit has not yet been issued to the mall."· I

22· ·understand that SMT stands for Senior Management

23· ·Team meeting?

24· · · · · · ·A.· Yes.

25· · · · · · ·Q.· "Fred said that Brian England is

·1· · · · · · ·well aware of what is required before a

·2· · · · · · ·building permit can be issued and they are

·3· · · · · · ·still working on getting all of the

·4· · · · · · ·documentation to the building department.

·5· · · · · · ·As Chris Clouthier had mentioned in his

·6· · · · · · ·e-mail.· No building permit will be issued

·7· · · · · · ·until they comply."

·8· · · · · · ·Unfortunately we weren't able to find

·9· ·that e-mail, Mr. Clouthier, that you would have

10· ·sent to Ms. Morin.· Do you recall -- I gather she

11· ·would have inquired about the work being done?

12· · · · · · ·A.· I'm not sure -- no, I don't recall

13· ·talking to Ms. Morin though I might have.· I think

14· ·when she's saying that -- oh yeah, she's saying

15· ·that I actually e-mailed her.

16· · · · · · ·Q.· Well it says, "As Chris Clouthier

17· ·mentioned in his e-mail..."

18· · · · · · ·A.· She must have e-mailed me asking

19· ·about it and I answered her I guess.

20· · · · · · ·Q.· Is it possible that the complainant,

21· ·the person that called the mall about the work

22· ·being done would have been the library?

23· · · · · · ·A.· It's possible.

24· · · · · · ·Q.· So I gather here, the information

25· ·she provides in here is the same one that you've

·1· ·just given to us in your evidence, being that Mr.

·2· ·England had to work on a better application for a

·3· ·building permit?

·4· · · · · · ·A.· Yes.

·5· · · · · · ·MS. EFFENDI:· Now, if we can go back,

·6· ·Ms. Kuka, to Exhibit No. 172, page 97.

·7· · · · · · ·BY MS. EFFENDI:

·8· · · · · · ·Q.· And that is 192 of your brief, sir.

·9· ·That's the document we were looking at earlier

10· ·with the handwritten note of Mr. Swan.

11· · · · · · ·So we were looking at a few minutes ago

12· ·the top portion of that note.· It appears though

13· ·that the bottom portion the handwriting changes.

14· · · · · · ·A.· Yes.

15· · · · · · ·Q.· Do you know whose handwriting that

16· ·is?

17· · · · · · ·A.· It has the initials half way down

18· ·"BE" and that stands for Bruce Ewald and that's

19· ·his writing.

20· · · · · · ·Q.· Okay.· So the first note he says

21· ·here, "July 10/08, 9:20 a.m. spoke to John

22· ·Clinckett (architect) and requested letters of

23· ·undertaking from Arch & Engineers, along with

24· ·specification and drawings for work to be

25· ·undertaken."

·1· · · · · · ·I gather those were the steps that Mr.

·2· ·Ewald was taking in relation to the issue of the

·3· ·building permit we just discussed?

·4· · · · · · ·A.· Yes.

·5· · · · · · ·Q.· Was Mr. Ewald -- did he make you

·6· ·aware of the steps he was taking or did he just

·7· ·tell you, looks Mr. Clouthier, I'm taking over

·8· ·this file?

·9· · · · · · ·A.· I had asked for it and didn't get it

10· ·and then he had taken it over.· And he was asking

11· ·for it through their architect, Mr. Clinckett who

12· ·had worked with the mall quite often and he's just

13· ·asking for that information.

14· · · · · · ·Q.· And do you know whether or not any

15· ·drawings and specs were eventually provided to the

16· ·City?

17· · · · · · ·A.· I'm not say ware of any but they

18· ·could have been, but they didn't come across my

19· ·desk.

20· · · · · · ·Q.· Well we'll ask Mr. Ewald about that.

21· ·And then we go on and see that there is a second

22· ·note from Mr. Ewald where it's dated July 21st.

23· ·And he says he's "called and left message for

24· ·Brian England because we haven't received anything

25· ·yet."

·1· · · · · · ·So I gather nothing had come up yet.

·2· ·And then on July 22n, the following day he said:

·3· ·"Spoke to Robert..." I believe that's "Cousineau.

·4· ·new supervisor for project."· Do you know who Mr.

·5· ·Cousineau was?

·6· · · · · · ·A.· I never met him.

·7· · · · · · ·Q.· So you didn't meet with him or have

·8· ·any discussion with him about the work and the

·9· ·project?

10· · · · · · ·A.· No.

11· · · · · · ·THE COMMISSIONER:· We'll break at this

12· ·point, Ms. Effendi.

13· · · · · · ·---· Afternoon break taken at 3:30 p.m.

14· · · · · · ·---· Upon resuming at 3:50 p.m.

15· · · · · · ·BY MS. EFFENDI:

16· · · · · · ·Q.· We're almost done, Mr. Clouthier.

17· ·Before we move on we just finished talking about

18· ·how you weren't aware of Mr. Robert Cousineau

19· ·being the new project lead on those repairs being

20· ·conducted on the roof, do you remember that?

21· · · · · · ·A.· Right.

22· · · · · · ·Q.· You should have in front of you now

23· ·volume 9, that is Exhibit No. 11-28.· This, Mr.

24· ·Clouthier, is actually a letter sent by Mr.

25· ·Bauthus and we understand it was sent in 2008,

·1· ·where again there was concerns being raised of

·2· ·leaks at the library.· I gather that you weren't

·3· ·aware that the leaks continued in 2008 at the

·4· ·library?

·5· · · · · · ·A.· No.

·6· · · · · · ·MS. EFFENDI:· If we now turn to tab 219,

·7· ·Ms. Kuka, Exhibit No. 11-30.

·8· · · · · · ·BY MS. EFFENDI:

·9· · · · · · ·Q.· This is a letter that was sent by

10· ·Henri McCleery to Mr. Bauthus on October 1st,

11· ·2008.· I understand that Ms. McCleery became the

12· ·mall manager?

13· · · · · · ·A.· Yes.

14· · · · · · ·Q.· And in this letter of October 1st,

15· ·2008, and just so we have it in the right time

16· ·frame, the issues we were looking at earlier about

17· ·the repairs and the building permit happened in

18· ·July of 2008, do you recall that, sir?

19· · · · · · ·A.· Yes.

20· · · · · · ·Q.· So this is in the fall of that same

21· ·year.· And she's writing to Mr. Bauthus and she's

22· ·saying:

23· · · · · · ·"I'm writing the you as per Mr. Nazarian.

24· · · · · · ·We would like to advise you that we have

25· · · · · · ·now completed the roof repairs over the

·1· · · · · · ·Library, at the Mall.· Today we will begin

·2· · · · · · ·the inspection process to inspect the roof

·3· · · · · · ·and drainage system.· We are confident the

·4· · · · · · ·leak situation has been rectified however,

·5· · · · · · ·this is a necessary step in the overall

·6· · · · · · ·process."

·7· · · · · · ·I gather you weren't aware that the

·8· ·repairs on the roof continued despite no building

·9· ·permit being issued?

10· · · · · · ·A.· No, I did not.· I wasn't aware of

11· ·it, no.

12· · · · · · ·Q.· So you wouldn't have been aware of

13· ·who did those repairs on the roof?

14· · · · · · ·A.· No.

15· · · · · · ·Q.· Okay.

16· · · · · · ·MS. EFFENDI:· If we can now turn to tab

17· ·263, Ms. Kuka, that is Exhibit No. 3459.

18· · · · · · ·BY MS. EFFENDI:

19· · · · · · ·Q.· And you'll see that that is an

20· ·inspection report.· And the inspector another the

21· ·top is Mr. Ewald.· And it's dated March 2009.· And

22· ·it's appears that the inspection was conducted at

23· ·the mall, the note indicates, "Spoke to Henri, job

24· ·is on hold.· She will notify my department when

25· ·work proceeds."· ·And that is a year later in

·1· ·March 2009.· Were you aware of what this

·2· ·inspection was about?

·3· · · · · · ·A.· No, I wasn't.

·4· · · · · · ·Q.· Okay.· Now if we can turn, sir, I'm

·5· ·going to be looking at volume 10.

·6· · · · · · ·MS. EFFENDI:· And that will be Exhibit

·7· ·No. 357, Ms. Kuka.

·8· · · · · · ·BY MS. EFFENDI:

·9· · · · · · ·Q.· And it's at tab 378 for you.· So you

10· ·have in front of you here, sir, it's an e-mail

11· ·from Mr. Bauthus and it appears to be to the

12· ·entire City Council?

13· · · · · · ·A.· Yes.

14· · · · · · ·Q.· And it's copied to Mr. Officer, Mr.

15· ·Ewald, the CBO and Virginia MacLean, who we

16· ·understand was the City solicitor?

17· · · · · · ·A.· Correct.

18· · · · · · ·Q.· And in this e-mail Mr. Bauthus now

19· ·says:

20· · · · · · ·"This is to advise that we have presently

21· · · · · · ·reviewing the past issues respecting the

22· · · · · · ·impact of water infiltration on the

23· · · · · · ·support structural members at the mall.

24· · · · · · ·In 2006 notices were issued to correct the

25· · · · · · ·fire proofing of the support members,

·1· · · · · · ·however nothing was done to date and

·2· · · · · · ·current investigations brought this to our

·3· · · · · · ·attention.· Some of the reasons for the

·4· · · · · · ·lack of follow up was a result that the

·5· · · · · · ·former CAO had arranged that

·6· · · · · · ·communications respecting the issue be

·7· · · · · · ·done with the then manager of the mall;

·8· · · · · · ·both of these parties are no longer with

·9· · · · · · ·the respective employers."

10· · · · · · ·Were you aware, sir, that no steps,

11· ·according to what Mr. Bauthus is saying here, were

12· ·taken with respect to the 2006 notice of

13· ·violation?

14· · · · · · ·A.· No, I wasn't aware of that.

15· · · · · · ·Q.· So Mr. Allard before he left hadn't

16· ·informed you of that?

17· · · · · · ·A.· No, he didn't.

18· · · · · · ·Q.· Now, if we could go to the following

19· ·tab in your book, sir, 379.

20· · · · · · ·MS. EFFENDI:· And, Ms. Kuka, it will be

21· ·Exhibit No. 102, but page that finishes with 8.

22· · · · · · ·BY MS. EFFENDI:

23· · · · · · ·Q.· You'll see, sir, that this is an

24· ·inspection report that is dated September 24th,

25· ·2009.· And it appears to have been conducted with

·1· ·respect to Property Standards at the mall.· And I

·2· ·see that this it indicates who was there in

·3· ·attending, Paul Officer, Darren Connors, Dimitri

·4· ·Yakimov.· And the inspection report appears to

·5· ·have been handwritten by Mr. Ewald.· I gather, sir

·6· ·you were not involved in this inspection in 2009?

·7· · · · · · ·A.· No, I wasn't.

·8· · · · · · ·Q.· Okay.· So you wouldn't have been

·9· ·aware of the order to remedy that would have been

10· ·issued by Mr. Ewald on September 25th, 2009?

11· · · · · · ·A.· No, I am not aware of that.

12· · · · · · ·Q.· And in fact just to make sure that

13· ·we know -- I can ask you if you've seen it.

14· · · · · · ·MS. EFFENDI:· If we can go back few

15· ·pages, Ms. Kuka, to page 4 of that document.

16· ·Right there.

17· · · · · · ·BY MS. EFFENDI:

18· · · · · · ·Q.· So this is the order to remedy

19· ·violation, sir.· I gather you weren't involved in

20· ·this order to remedy?

21· · · · · · ·A.· No.

22· · · · · · ·MS. EFFENDI:· And then in that same

23· ·regard, if we go a few pages down to page 11 of

24· ·that document, Ms. Kuka.

25

·1· · · · · · ·BY MS. EFFENDI:

·2· · · · · · ·Q.· I gather you've never seen this

·3· ·report, sir, from M.R. Wright which was prepared

·4· ·as a follow up to this order to comply?

·5· · · · · · ·A.· No, I haven't.

·6· · · · · · ·Q.· So were you at all informed of what

·7· ·was going on in September of 2009 at the mall?

·8· · · · · · ·A.· No.

·9· · · · · · ·Q.· Do you know who Dimitri Yakimov is,

10· ·sir?

11· · · · · · ·A.· I've heard the name before.· I

12· ·believe he was a manager of the mall, there was a

13· ·lot of them.

14· · · · · · ·Q.· Okay.

15· · · · · · ·A.· But I think he was a manager of the

16· ·mall.

17· · · · · · ·Q.· Did you deal with him in any of your

18· ·affairs

19· · · · · · ·A.· I don't believe I did, no.

20· · · · · · ·Q.· So I gather then you wouldn't have

21· ·been involved in terms of the follow-up step that

22· ·led to Mr. Ewald sending a letter to the owner

23· ·saying that all remediation steps have been taken?

24· · · · · · ·A.· No.

25· · · · · · ·Q.· I understand, Mr. Clouthier, that

·1· ·you did several inspections at the mall in 2010 as

·2· ·well, do you recall that?

·3· · · · · · ·A.· I did do some, yes.

·4· · · · · · ·Q.· And am I right, sir, that all of

·5· ·those inspections appear to have been in relation

·6· ·to either tenant -- tenant renovations in terms of

·7· ·plumbing at the mall?

·8· · · · · · ·A.· Yes.

·9· · · · · · ·Q.· None of those inspections were in

10· ·respect of a complaint for Property Standards?

11· · · · · · ·A.· No.

12· · · · · · ·Q.· Do you recall if you had seen any

13· ·leaks during those inspections that you conducted

14· ·in 2010?

15· · · · · · ·A.· I don't recall seeing anything, no.

16· · · · · · ·Q.· And it appears from the

17· ·documentation that we have that you conducted a

18· ·few inspections in relation to the Algoma Health

19· ·Unit?

20· · · · · · ·A.· Yes.

21· · · · · · ·Q.· Do you recall that?

22· · · · · · ·A.· Yes.

23· · · · · · ·Q.· So does that refresh your memory in

24· ·terms of having seen any leaks or anything of that

25· ·nature when you went and conducted those

·1· ·inspections?

·2· · · · · · ·A.· I recall where that is in the mall.

·3· ·And again I would have went through the side door

·4· ·closest to City Hall, walked down that hall a bit,

·5· ·up an escalator, turned at the top of the

·6· ·escalator and went down probably four or five

·7· ·office areas to that location.· And that area I

·8· ·didn't see leaking that I recall.

·9· · · · · · ·Q.· Okay.· And do you recall, sir, also

10· ·doing an inspection in terms of plumbing and

11· ·renovations that were done with bathrooms and

12· ·washrooms?

13· · · · · · ·A.· Yes.

14· · · · · · ·Q.· And do you recall if you had seen

15· ·any leaks with respect when you conducted those

16· ·inspections?

17· · · · · · ·A.· Again that was at the top of the

18· ·escalators and no I didn't at the time.

19· · · · · · ·Q.· So is it fair to say, sir, that

20· ·after your October 2006 inspection, the second one

21· ·with Mr. Allard, you do not recall seeing any

22· ·leaks at the mall, or buckets, or evidence of

23· ·leaks when you went to visit the mall to conduct

24· ·these building permit inspections?

25· · · · · · ·A.· No, I don't.· I don't recall seeing

·1· ·any leaks when I went to do my inspections.

·2· · · · · · ·Q.· My final questions, sir, is in

·3· ·relation to vehicles on the roofing.· On those

·4· ·occasions when you were at the mall and you were

·5· ·on the roof, because you mentioned a few occasions

·6· ·when you were there, do you recall seeing the snow

·7· ·removal vehicles that was used by the owners of

·8· ·the mall.

·9· · · · · · ·A.· No.

10· · · · · · ·Q.· Do you recall seeing any transport

11· ·trucks on the roof of the mall?

12· · · · · · ·A.· No.

13· · · · · · ·Q.· Do you recall seeing any moving

14· ·vans?

15· · · · · · ·A.· No.

16· · · · · · ·Q.· Did you recall seeing any Greyhound

17· ·buses?

18· · · · · · ·A.· No.

19· · · · · · ·Q.· Sir, those are all my questions.· My

20· ·colleagues may have some questions for you.

21· · · · · · ·MR. SHOEMAKER:· We have no direct --

22· ·we're not going to adduce any evidence with Mr.

23· ·Clouthier.

24· · · · · · ·THE COMMISSIONER:· Cross-examination.

25· · · · · · ·MR. ROMANO:· I have no questions of this

·1· ·witness.

·2· · · · · · ·THE COMMISSIONER:· Thank you.· Mr.

·3· ·MacRae.

·4· · · · · · ·CROSS-EXAMINATION BY MR. MACRAE:

·5· · · · · · ·Q.· Good afternoon, Mr. Clouthier.· My

·6· ·name is Bob MacRae and I'm counsel on behalf of

·7· ·Bob Wood.· I have questions with respect to

·8· ·inspections regarding the sprayed-on insulation.

·9· ·There's been very many references this afternoon

10· ·to the insulation being missing from the beam,

11· ·fire insulation.

12· · · · · · ·Did you participate in any inspections

13· ·of that material when it was resprayed?

14· · · · · · ·A.· When it was resprayed?· No, I

15· ·didn't.

16· · · · · · ·Q.· I have no question then, thank you

17· ·very much.

18· · · · · · ·THE COMMISSIONER:· Mr. Longo.

19· · · · · · ·CROSS-EXAMINATION BY MR. LONGO:

20· · · · · · ·Q.· Good afternoon, Mr. Clouthier, my

21· ·name I'm Leo Longo and I represent the OBOA.· I

22· ·wanted to ask about your employment, when you were

23· ·first hired as a Building Inspector I take it you

24· ·have served as a Building Inspector from day one

25· ·to today, is that correct?

·1· · · · · · ·A.· That's correct.

·2· · · · · · ·Q.· And with respect to being a Property

·3· ·Standards Officers, when were you first appointed

·4· ·as a Property Standards Officer?

·5· · · · · · ·A.· The· first day I started work.

·6· · · · · · ·Q.· And have you continued as an officer

·7· ·as well throughout to the present day?

·8· · · · · · ·A.· Yes.

·9· · · · · · ·Q.· Thank you.· I'd like to deal with

10· ·the duties of a Building Inspector, and Ms.

11· ·Effendi I think filed Exhibit No. 3380.· And as I

12· ·understand this was prepared by Mr. Allard?

13· · · · · · ·A.· Yes.

14· · · · · · ·Q.· And basically outlines the duties of

15· ·sharing the Building Inspector role between

16· ·yourself and Dale --

17· · · · · · ·A.· Swan.

18· · · · · · ·Q.· Swan, thank you.· Sir, I just want

19· ·you to agree that this exhibit speaks to multiple

20· ·duties.· Duties of the inspector under the

21· ·Property Standards By-Law, duties under Building

22· ·Code and also By-law Enforcement duties.· It

23· ·covers the gamut?

24· · · · · · ·A.· Yes, that's correct.

25· · · · · · ·Q.· All right, thank you.· I'd like to

·1· ·deal with the powers of a building inspector.· I

·2· ·just want you to confirm, are you able to issue a

·3· ·building permit or is that the CBOs job?

·4· · · · · · ·A.· That's the CBOs's job.

·5· · · · · · ·Q.· All right.· And an order to uncover

·6· ·is that the CBO's job?

·7· · · · · · ·A.· I believe so, yes.

·8· · · · · · ·Q.· I also understand that it's the

·9· ·CBO's job to issue a stop work order?

10· · · · · · ·A.· Yes.

11· · · · · · ·Q.· An emergency order?

12· · · · · · ·A.· Yes.

13· · · · · · ·Q.· And an occupancy prohibition order?

14· · · · · · ·A.· Yes.

15· · · · · · ·Q.· So as I understand it the kinds of

16· ·orders that an inspector can issue would be an

17· ·order to comply under section 12.2 of the Act?

18· · · · · · ·A.· Yes.

19· · · · · · ·Q.· An order not to cover under 13.1 of

20· ·the Act?

21· · · · · · ·A.· Yes.

22· · · · · · ·Q.· And an unsafe building remediation

23· ·order under 15.9 sub (4) of the Act?

24· · · · · · ·A.· Yes.

25· · · · · · ·Q.· I'm not aware of any other order

·1· ·under the Act that an inspector can give other

·2· ·than those three, is that correct --

·3· · · · · · ·A.· Yes.

·4· · · · · · ·Q.· Thank you.· The Building By-Law that

·5· ·generally applied since you've been employed is

·6· ·Building By-law 06-99, which is Exhibit No. 6-4.

·7· · · · · · ·MR. LONGO:· If I could ask Ms. Kuka to

·8· ·put that up.

·9· · · · · · ·BY MR. LONGO:

10· · · · · · ·Q.· And have you confirm, sir, that this

11· ·by-law does not address or give you any additional

12· ·powers as a Building Inspector, is that correct.

13· · · · · · ·A.· That's correct.

14· · · · · · ·Q.· So your powers under the Building

15· ·Code Act as a Building Inspector are those three

16· ·powers we flagged?

17· · · · · · ·A.· Yes.

18· · · · · · ·Q.· Now I'd like to turn to your powers

19· ·as a Property Standards Officer.· I understand

20· ·that you can order -- you can issue a repair order

21· ·to achieve compliance with a Property Standards

22· ·By-Law?

23· · · · · · ·A.· Yes, that's correct.

24· · · · · · ·Q.· And that's under section 15.2 sub

25· ·(2) of the Building Code Act, correct?

·1· · · · · · ·A.· Yes.

·2· · · · · · ·Q.· You also under the Property

·3· ·Standards section 15.7 sub (1) can issue an

·4· ·emergency order if a Property Standards issue

·5· ·causes imminent danger, is that correct?

·6· · · · · · ·A.· Yes.

·7· · · · · · ·Q.· And then finally, section 15.8 of

·8· ·the Building Code Act gives you six very specific

·9· ·powers of inspection powers that you have as a

10· ·Property Standards Officer?

11· · · · · · ·A.· Yes.

12· · · · · · ·Q.· And these run from requiring the

13· ·production of and inspection of documents to

14· ·allowing you to remove such documents?

15· · · · · · ·A.· Yes.

16· · · · · · ·Q.· Coming on and taking samples on the

17· ·property?

18· · · · · · ·A.· Yes.

19· · · · · · ·Q.· And having an expert attend with you

20· ·to do that?

21· · · · · · ·A.· Yes.

22· · · · · · ·Q.· So you're familiar with all those

23· ·powers?

24· · · · · · ·A.· Yes.

25· · · · · · ·MR. LONGO:· Then I'd ask if Ms. Kuka

·1· ·could put up Property Standards By-Law 03-29.

·2· · · · · · ·BY MR. LONGO:

·3· · · · · · ·Q.· And this would be the Property

·4· ·Standards By-Law that would have been in place

·5· ·throughout your career in Elliot Lake, correct?

·6· · · · · · ·A.· That's correct.

·7· · · · · · ·Q.· I would like to confirm, because the

·8· ·numbers have slightly changed from the previous

·9· ·Property Standards By-Law.· If we go to section 2

10· ·of this by-law, which I think is page 2.· Go to

11· ·page 4 or five there's an appendix.· If we go to

12· ·the second page of the appendix, section 2, that's

13· ·the section about structural soundness that we've

14· ·been chatting about throughout this inquiry,

15· ·correct?

16· · · · · · ·A.· Yes, that's correct.

17· · · · · · ·Q.· And, sir, I think it generally is

18· ·the same as the previous Property Standards By-Law

19· ·that existed in 1979?

20· · · · · · ·A.· I believe so.

21· · · · · · ·Q.· So that's still there.· If we could

22· ·go to section 5.1(a) dealing with roofs, which is

23· ·the next page.· We'll see that the requirement of

24· ·maintaining a roof in a watertight condition is

25· ·again repeated here as it was in 1979?

·1· · · · · · ·A.· Yes.

·2· · · · · · ·Q.· And then finally if we could go to

·3· ·section 16 of this by-law, which is two more pages

·4· ·in.· "Dampness, floors ceilings and walls of every

·5· ·building shall be kept free of moisture, dampness

·6· ·and resulting fungus growth."· I think under the

·7· ·old by-law it was section 15.

·8· · · · · · ·A.· Could be.

·9· · · · · · ·Q.· So those are the three sections that

10· ·provided standards which might be relevant to the

11· ·Commissioner as part of this inquiry.· Would you

12· ·agree with me that this by-law does not address or

13· ·grant to you as a property standards officer any

14· ·additional powers than what we've canvassed so

15· ·far?

16· · · · · · ·A.· That's correct, yes.

17· · · · · · ·Q.· Thank you.· I'd like to go to

18· ·Exhibit No. 3349, which is the Level of Service

19· ·and Enforcement Policy which was created in '05 or

20· ·'06.· Oh 2006.

21· · · · · · ·MR. LONGO:· If we could go to page 6 of

22· ·12 please, Ms. Kuka.· This is the page that will

23· ·have the standard dealing with the Building

24· ·By-Law.· They are listed alphabetically I think in

25· ·the chart.· Thank you.

·1· · · · · · ·BY MR. LONGO:

·2· · · · · · ·Q.· If we look at what the level of

·3· ·service is there's really not much new on the

·4· ·right hand side of the column, I think it's

·5· ·generally what it's always been?

·6· · · · · · ·A.· Yes.

·7· · · · · · ·Q.· There was a notation on the left

·8· ·hand side though, it says, "Changes is

·9· ·coming...and a new Moving by-law is coming."· Can

10· ·you tell me what that notation means?

11· · · · · · ·A.· Someone has put that in saying that

12· ·there's going to be a change, but I'm not aware of

13· ·the new moving by-law.· I probably have seen it

14· ·but I'm not what the change is.

15· · · · · · ·Q.· All right.· We'll leave it at that.

16· ·And then if we could turn to page 9 of 12 dealing

17· ·with Property Standards.· There's a point I would

18· ·like you to agree with and then we'll go back to

19· ·this.· My reading of this document suggests that

20· ·there are two pro-active programs.· One is found

21· ·on this page and it's referred to as the

22· ·"Pro-active Inspection Program," correct?

23· · · · · · ·A.· Yes.

24· · · · · · ·MR. LONGO:· Ms. Kuka, if you go to the

25· ·next page.

·1· · · · · · ·BY MR. LONGO:· We'll see that there's a

·2· ·second one called the "Pro-active Enforcement

·3· ·Program"?

·4· · · · · · ·A.· Yes.

·5· · · · · · ·Q.· Would you agree that that's a

·6· ·distinct and separate one from what's on the

·7· ·previous page?

·8· · · · · · ·A.· Yes.

·9· · · · · · ·Q.· Okay.· If we can go back then to the

10· ·previous page dealing with the Pro-active

11· ·Inspection.· I've read this section more than I

12· ·care to refer and I don't see that it stipulates

13· ·how pro-active you are expected to be.· So let's

14· ·deal with vacant buildings and buildings that are

15· ·50% of commercial properties and multi-res.· Is

16· ·this suggesting that you inspect them annually as

17· ·directed?· What's it telling you?

18· · · · · · ·A.· I believe it was passed and it was a

19· ·list of buildings that was brought to my attention

20· ·that I was to check.· And then I think it was --

21· ·they were wanting it to be ongoing for anything,

22· ·until everything was cleared up.· If it wasn't I

23· ·think it would have been an annual -- it would be

24· ·something that you would check on once in a while,

25· ·yes.

·1· · · · · · ·Q.· I see -- you'll agree with my there

·2· ·is no time limit or time frame within which you're

·3· ·supposed to be pro-active?

·4· · · · · · ·A.· That's correct.

·5· · · · · · ·Q.· So what can you tell the

·6· ·Commissioner as to how you interpreted and how you

·7· ·implemented this section?· Was it annually?· Was

·8· ·it more than annually?

·9· · · · · · ·A.· It was something that was found out

10· ·to be an ongoing problem that they wanted to deal

11· ·with.· So they made this by-law and had a list of

12· ·buildings.· And I was to enforce any buildings

13· ·that fell under that category.

14· · · · · · ·THE COMMISSIONER:· So it's situational

15· ·more than a repeating kind of thing.· A

16· ·situational in the sense that City Council had a

17· ·bunch of buildings in mind.

18· · · · · · ·THE WITNESS:· Right.

19· · · · · · ·THE COMMISSIONER:· They passed the

20· ·by-law to address those buildings specifically.

21· · · · · · ·THE WITNESS:· Correct.

22· · · · · · ·BY MR. LONGO:

23· · · · · · ·Q.· And in light of that question and

24· ·answer, did City Council update that list of

25· ·buildings periodically for you?

·1· · · · · · ·A.· I believe in the beginning they did.

·2· ·But after -- I recall the first two years that we

·3· ·had got into it heavily and cleared up a lot of

·4· ·the problems, I'm not sure if it was a hundred

·5· ·percent complete but for the most part we had

·6· ·caught up on everything.

·7· · · · · · ·Q.· Thank you.· And then reading

·8· ·through, after it identifies the building to which

·9· ·this pro-active inspection program will apply, it

10· ·then says:

11· · · · · · ·These properties will be inspected for all

12· · · · · · ·visually [quote] evident deficiencies [end

13· · · · · · ·quote] affecting the building exterior and

14· · · · · · ·yard conditions and all [quote] visually

15· · · · · · ·evident deficiencies [end quote] that will

16· · · · · · ·affect the structure of building

17· · · · · · ·integrity."

18· · · · · · ·Is "visually evident" defined in this

19· ·by-law?

20· · · · · · ·A.· No, I believe it is.

21· · · · · · ·Q.· And I don't believe it is either.

22· ·Can you tell me what meaning do you ascribe to

23· ·"visually evident deficiency"?

24· · · · · · ·A.· I believe I'm just supposed to check

25· ·these buildings when they fall under that

·1· ·category, inside and out, and follow our Property

·2· ·Standards and any other by-law.· And make note or

·3· ·act upon anything that doesn't comply with a

·4· ·Property Standard or a bylaw.

·5· · · · · · ·Q.· Now would "visually evident" would

·6· ·that allow you to remove ceiling tiles, for

·7· ·example, in order to look beyond them to visually

·8· ·inspect?

·9· · · · · · ·A.· No, that's not what they're asking.

10· ·They're asking to just go there and visually take

11· ·a look at things and see what you see.

12· · · · · · ·Q.· And you're not allowed to uncover

13· ·anything to visually inspect?

14· · · · · · ·A.· It doesn't say to do that.· I don't

15· ·think I would cut a hole in the wall or do

16· ·anything to that extent.

17· · · · · · ·Q.· All right.· And in your practice did

18· ·you ever in exercise -- how many times would you

19· ·have undertaken an inspection pursuant to this

20· ·pro-active inspection program?

21· · · · · · ·A.· Quite a few.

22· · · · · · ·Q.· All right.

23· · · · · · ·A.· And again, it mainly -- I mainly

24· ·dealt with residential apartment buildings,

25· ·generally speaking.

·1· · · · · · ·Q.· And do I understand your testimony

·2· ·that those buildings required to be 50% vacant in

·3· ·order for you to go in them?

·4· · · · · · ·A.· That's correct.

·5· · · · · · ·Q.· Thank you.· And with respect to 50%

·6· ·as it pertains to commercial buildings, did I

·7· ·understand your evidence that you were uncertain

·8· ·as to whether that meant 50% of the gross floor

·9· ·area or 50% of the units themselves?

10· · · · · · ·A.· I am unsure about that and I think

11· ·it's due to fact that I did not deal with very

12· ·many commercial buildings in my time.

13· · · · · · ·Q.· Was the mall, in your view, ever

14· ·more than 50% vacant either as it pertains to

15· ·gross floor area total or individual unit

16· ·calculation?

17· · · · · · ·A.· Not in the time that I was here.

18· · · · · · ·Q.· Thank you.· Now at the bottom of the

19· ·page it says that the pro-active inspections for

20· ·the buildings that are subject to those

21· ·inspections only apply to certain sections of the

22· ·Property Standards By-Law, correct?

23· · · · · · ·A.· That's correct.

24· · · · · · ·Q.· And it includes section 2 which is

25· ·structure, and it includes section 5.1 which is

·1· ·roof?

·2· · · · · · ·A.· Yes.

·3· · · · · · ·Q.· There's no mention of section 16

·4· ·dealing with dampness and mold respecting

·5· ·ceilings, correct?

·6· · · · · · ·A.· No, there isn't, no.

·7· · · · · · ·Q.· All right.

·8· · · · · · ·MR. LONGO:· Ms. Kuka, if you could turn

·9· ·to the next page.

10· · · · · · ·BY MR. LONGO:

11· · · · · · ·Q.· Having seen that list we then have

12· ·the top of this page that says, "The occupied

13· ·portions of the building will be subject to a full

14· ·Property Standards and fire code review."· What

15· ·does that section mean directly following the

16· ·section we've just looked at?

17· · · · · · ·A.· I'm not sure why it was made up the

18· ·way it was made up, but in going with a normal

19· ·procedure, if someone actually occupied a

20· ·building, lived in an apartment, or a house and I

21· ·was checking on it for Property Standards, all of

22· ·them would be -- have to comply.

23· · · · · · ·Q.· And that seems to just be stating

24· ·what you would normally be requiring.· So why is

25· ·this under the pro-active inspection section?· I'm

·1· ·-- that's what I'm wrestling with?

·2· · · · · · ·A.· I think Mr. Allard would best be

·3· ·able to answer that because he made it up.

·4· · · · · · ·Q.· That's a fair answer and I'll ask.

·5· ·Turning now to pro-active enforcement.· Would you

·6· ·agree with me that this speaks to commercial and

·7· ·multi-residential properties regardless of their

·8· ·vacancy rate?

·9· · · · · · ·A.· I believe it has to fall under that

10· ·50%.

11· · · · · · ·Q.· You believe this is qualified by the

12· ·50%?

13· · · · · · ·A.· As far as I know, yes.

14· · · · · · ·Q.· Okay, thank you.· Just a few

15· ·Property Standards questions.· Did you at the

16· ·Building Department ever receive a Property

17· ·Standards complaint from any mall tenants from

18· ·2004 to collapse?

19· · · · · · ·A.· I did not, not that I'm aware of,

20· ·no.

21· · · · · · ·Q.· Did you receive any Property

22· ·Standards complaints from mall employees?

23· · · · · · ·A.· No.

24· · · · · · ·Q.· And how about mall patrons during

25· ·that time?

·1· · · · · · ·A.· No.

·2· · · · · · ·Q.· Did you ever issue a Property

·3· ·Standards order respecting the mall or any tenant

·4· ·in the mall?

·5· · · · · · ·A.· No.

·6· · · · · · ·Q.· Sir, I'm going to ask you a few

·7· ·questions about your independence.· In your nine

·8· ·years as an inspector has the Mayor, elected

·9· ·Councillors or senior City officials ever directed

10· ·you how to do your job?

11· · · · · · ·A.· No.

12· · · · · · ·Q.· Have they ever interfered with the

13· ·performance of your duties under the Building Code

14· ·Act?

15· · · · · · ·A.· No.

16· · · · · · ·Q.· Certification questions.· I

17· ·understand you've been a member of the OBOA since

18· ·September 2004, which coincided with you starting

19· ·here?

20· · · · · · ·A.· That's correct.

21· · · · · · ·Q.· And that you were certified as CBCO

22· ·January 31, of 2008?

23· · · · · · ·A.· Yes.

24· · · · · · ·Q.· Could you please advise the

25· ·Commission why you sought certification and what

·1· ·that certification means to you?

·2· · · · · · ·A.· Well it's a level of education and

·3· ·training that's -- gives you a standard that's

·4· ·up-to-date and broad in range that helps you do

·5· ·your job the best you can do it.

·6· · · · · · ·Q.· And, sir, you mentioned education

·7· ·and training.· Does it also include a level of

·8· ·experience as well?

·9· · · · · · ·A.· Absolutely, yes.

10· · · · · · ·Q.· Thank you.· And do you have any

11· ·views as to what kind of professional

12· ·certification a building official should be

13· ·required to possess today in order to engage in

14· ·the profession that you're in?

15· · · · · · ·A.· Well I believe that they -- they --

16· ·there's a tendency that you have to hire people

17· ·that have so much of a qualification and

18· ·background.· But it's not likely you're always

19· ·going to get a guy that's fully qualified or with

20· ·a ton of experience.· So I know now that when they

21· ·do take an inspector that he's trained to get

22· ·started and only do the inspections that he's

23· ·qualified for and not anything else.· And then as

24· ·he gets his further education and training then

25· ·he's allowed to do more.

·1· · · · · · ·Q.· Do you think that eventually a

·2· ·building official should be certified as a CBCO

·3· ·once they've received their education and

·4· ·experience?

·5· · · · · · ·A.· Yes.

·6· · · · · · ·Q.· Sir, on one of the exhibits that Ms.

·7· ·Effendi took you to your name was listed, and

·8· ·under your name was this notation, BCIN21777 can

·9· ·you tell the Commissioner what that number is?

10· · · · · · ·A.· That's a Building Code

11· ·Identification Number.

12· · · · · · ·Q.· Who assigns it to you?

13· · · · · · ·A.· The Ontario Building Officials

14· ·Association.

15· · · · · · ·Q.· And are there any minimum

16· ·qualifications to acquire that BCIN?

17· · · · · · ·A.· Yes.

18· · · · · · ·Q.· And do you -- is there anything that

19· ·you need to do to maintain that BCIN number?

20· · · · · · ·A.· Yes.

21· · · · · · ·Q.· All right.· Those are my questions.

22· ·Thank you, Mr. Commissioner.· Thank, you Mr.

23· ·Clouthier.

24· · · · · · ·THE COMMISSIONER:· Ms. Parker.

25· · · · · · ·MS. PARKER:· No questions.

·1· · · · · · ·THE COMMISSIONER:· Re-examination?

·2· · · · · · ·RE-EXAMINATION BY MR. SHOEMAKER:

·3· · · · · · ·Q.· Good afternoon, Mr. Clouthier.

·4· · · · · · ·A.· Good afternoon.

·5· · · · · · ·MR. SHOEMAKER:· Ms. Kuka, if I could

·6· ·have Exhibit No. 6-8 brought up please.

·7· · · · · · ·BY MR. SHOEMAKER:

·8· · · · · · ·Q.· Mr. Clouthier, you were asked about

·9· ·this document by my friend, Ms. Effendi?

10· · · · · · ·A.· Yes.

11· · · · · · ·Q.· And this is a level of service

12· ·policy that we heard was in place until

13· ·approximately '05 that required -- that required a

14· ·complaint -- it was passive enforcement for

15· ·Property Standards complaints?

16· · · · · · ·A.· Yes.

17· · · · · · ·Q.· And in your evidence you stated that

18· ·after getting a complaint you were responsible for

19· ·dealing with it.· Can you just explain what you

20· ·mean by being responsible for dealing with such a

21· ·complaint?· What actions would you take?

22· · · · · · ·A.· Well the Clerk receives a complaint,

23· ·enters it into a database, prints it and gives it

24· ·to -- well it would be me now, I'm the one and

25· ·only inspector right now.· I would have to

·1· ·investigate that complaint.· And if it fell under

·2· ·any of our by-laws or Property standards or

·3· ·Building Code Act, then I would have to deal with

·4· ·that.

·5· · · · · · ·Q.· And when if at all would you advise

·6· ·your superiors that such a situation existed?

·7· · · · · · ·A.· I guess for something that was more

·8· ·serious or something that was bigger.· If I was

·9· ·asking for a clean up that was going to cost

10· ·$10,000 I wouldn't take it upon myself to make the

11· ·order and not let my -- the CBO know that.

12· · · · · · ·Q.· Before leaving this document you

13· ·mentioned a data base of issues.· Do you know any

14· ·reason why the Building Department maintained that

15· ·database?

16· · · · · · ·A.· Why they do what?

17· · · · · · ·Q.· Why they maintain such a data base?

18· · · · · · ·A.· Just for records I guess.· Mainly

19· ·for a record I guess to pay attention if there's

20· ·issues that repeat themselves that would be good

21· ·to know also.

22· · · · · · ·Q.· Thank you.

23· · · · · · ·MR. SHOEMAKER:· If I could turn to

24· ·Exhibit No. 1704, Ms. Kuka.

25· · · · · · ·BY MR. SHOEMAKER:

·1· · · · · · ·Q.· We heard this is an e-mail from the

·2· ·CBO at the time, Mr. Allard, to Mr. Derreck, the

·3· ·mall manager at the time, concerning an inspection

·4· ·that the two of you had conducted?

·5· · · · · · ·A.· Yeah, Mr. Derreck was CAO at the

·6· ·time for the City.

·7· · · · · · ·Q.· Yes, my apologies.· And there is a

·8· ·paragraph second from the bottom I believe.· It's

·9· ·a two page e-mail.· A line in there, "When

10· ·requested, Mr. England was unable to provide a

11· ·written specification or plan for the overall roof

12· ·leakage remediation."· You were asked if these

13· ·specifications were requested.· And my question is

14· ·when would this type of roof on the -- or sorry,

15· ·this type of work not this type of roof.· When

16· ·would this type of work on the roof have required

17· ·such a building permit?

18· · · · · · ·A.· Well again I think if you have a

19· ·leak in a roof and you're trying to seal it with

20· ·something, I don't think you need to track

21· ·somebody down and say, You need a permit.· But if

22· ·the roof is leaking considerably, and it's a big

23· ·roof like the size of a mall and it's in this

24· ·instance, if work was going to be undertaken on

25· ·that roof deck then it would require a permit.

·1· · · · · · ·It would be up to the CBO, generally

·2· ·speaking, to decide -- like find out what exactly

·3· ·they were doing and then probably get them to get

·4· ·a permit if they needed it.

·5· · · · · · ·Q.· Could you explain why additional

·6· ·information as -- or specifications are needed for

·7· ·such permit work?

·8· · · · · · ·A.· Just to know what it is that they're

·9· ·doing so you -- you're clear on exactly what it is

10· ·that's going on there.

11· · · · · · ·Q.· Thank you.· If I could turn to

12· ·Exhibit No. 11-5.· And I'm not sure if you were

13· ·asked specifically about this document but you

14· ·were asked about one of the -- you were asked

15· ·about on of the statement contained in the

16· ·document under "physical plant.· You were asked

17· ·about this statement that being, "The month of

18· ·October 2007 proved to be almost as bad for leaks

19· ·as October of 2006".

20· · · · · · ·A.· That's correct.

21· · · · · · ·Q.· And I was wanting to ask, if you had

22· ·been made ware of the fact that the library was

23· ·dealing with such circumstances in October of 2007

24· ·what would you have done?

25· · · · · · ·A.· I imagine we would -- I would have

·1· ·-- if I was made aware of it I would have gone to

·2· ·my CBO and talked to him about it.

·3· · · · · · ·Q.· Would the fact that it was -- it

·4· ·would have been had it come to you, something that

·5· ·you had already dealt with, would that have

·6· ·impacted how you dealt with it?

·7· · · · · · ·A.· Well as far as I know on what went

·8· ·on with it, there was a notice of violation given.

·9· ·So I never really heard anything past that.

10· · · · · · ·Q.· If I can take you to Exhibit No.

11· ·303.· This is a posted version of an order to

12· ·comply that you issued while you were acting CBO I

13· ·believe?

14· · · · · · ·A.· Yes.

15· · · · · · ·Q.· You mentioned in your evidence that

16· ·you had faxed this to Mr. Nazarian.· Why is it

17· ·that you would do that?

18· · · · · · ·A.· When you give an order to comply it

19· ·goes to the owner first and foremost, but it often

20· ·pertains to other people.· In this case it was a

21· ·mall and there is a mall manager so they both got

22· ·it.

23· · · · · · ·Q.· Is it a requirement that it go to

24· ·the owner?

25· · · · · · ·A.· Yes.

·1· · · · · · ·Q.· More generally, you were acting CBO

·2· ·at this time.· Why is it that you didn't issue a

·3· ·stop work order as opposed to an order to comply?

·4· · · · · · ·A.· I think it was because they hadn't

·5· ·started the work yet.· And I had asked them not to

·6· ·go ahead with it without getting a permit.· And

·7· ·the manager -- Mr. England who was rather the

·8· ·manager at the time, or project supervisor, he was

·9· ·aware that no work was to go ahead.· And he gave

10· ·he his word that they weren't going to do anything

11· ·and that he would be in with the permit

12· ·application before they went ahead with anything.

13· · · · · · ·Q.· More generally, not specifically

14· ·related to this order, but generally what was your

15· ·experience, if any, in dealing with this mall

16· ·owner, Mr. Nazarian, with respect to building

17· ·permits for work that was being done?

18· · · · · · ·A.· I can say it was in that time frame

19· ·that I often caught them working without permits.

20· · · · · · ·Q.· And the same question with respect

21· ·to the previous owner, Elliot Lake Retirement

22· ·Living.· What was your experience, if any in,

23· ·dealing with them for building permits for work

24· ·being done on the mall?

25· · · · · · ·A.· I didn't have really any dealings

·1· ·with them so I'm not aware of any problems that I

·2· ·had with them.

·3· · · · · · ·Q.· Those are all my questions.

·4· · · · · · ·THE COMMISSIONER:· Thank you.

·5· · · · · · ·MR. SHOEMAKER:· Thank you.

·6· · · · · · ·THE COMMISSIONER:· Ms. Effendi.

·7· · · · · · ·RE-EXAMINATION BY MS. EFFENDI:

·8· · · · · · ·Q.· Just one question in re-examination,

·9· ·sir.· You just mentioned to my friend Mr.

10· ·Shoemaker that when dealing with Mr. Nazarian as

11· ·the owner of the mall you caught them several

12· ·times working without permits.· What kind of work

13· ·were they doing, aside from that one incident we

14· ·just looked at?

15· · · · · · ·A.· There was the storage building?

16· · · · · · ·Q.· Okay.

17· · · · · · ·A.· And I believe there were a couple of

18· ·things that they might have gone ahead with in the

19· ·mall that they were -- I believe they were caught

20· ·working without permits.· And it was just a bit of

21· ·a problem with Mr. England working without getting

22· ·permits, even though he had been told previous.

23· · · · · · ·Q.· And was any of that other work, work

24· ·on the roof, aside from that one incident where

25· ·you actually issued an order to comply?

·1· · · · · · ·A.· No.

·2· · · · · · ·Q.· Those are all my questions.

·3· · · · · · ·THE COMMISSIONER:· Thank you.· Thank you

·4· ·very much, Mr. Clouthier.· You've been very

·5· ·patient and helpful.

·6· · · · · · ·Tomorrow morning?

·7· · · · · · ·MS. EFFENDI:· Tomorrow morning, Mr.

·8· ·Commissioner, we have Mr. McDonald and Ms. Authier

·9· ·will be leading that evidence.· And then we have

10· ·Mr. Speck and Mr. Doody will be leading that

11· ·evidence.

12· · · · · · ·THE COMMISSIONER:· Thank you.· We'll

13· ·rise now until 9 o'clock tomorrow morning.

14· · · · · · ·---· Whereupon the Inquiry adjourned at

15· ·4:30 p.m.

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·1· · · · · · · · ·REPORTER'S CERTIFICATE

·2

·3· · · · · · ·I, HELEN MARTINEAU, CSR, Certified

·4· ·Shorthand Reporter, certify;

·5· · · · · · ·That the foregoing proceedings were

·6· ·taken before me at the time and place therein set

·7· ·forth;

·8· · · · · · ·That the testimony of the witness and

·9· ·all objections made at the time of the examination

10· ·were recorded stenographically by me and were

11· ·thereafter transcribed;

12· · · · · · ·That the foregoing is a true and

13· ·accurate transcript of my shorthand notes so

14· ·taken.

15· · · · · · ·Dated this 30th day of April, 2013.

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17· · · · · · · · · · · ·______________________________

18· · · · · · · · · · · ·PER:· HELEN MARTINEAU

19· · · · · · · · · · · ·CERTIFIED SHORTHAND REPORTER

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