Capital Pointe appeal hearing ends but the headache, and the hole, remain

After three days of deliberations the Capital Pointe hearing concluded the way it began: decidedly decisive. Dave Parsons / Global News

In his final remarks to the Saskatchewan Building and Accessibility Standards Appeal Board, counsel for the developers of Capital Pointe didn’t mince words on why the appeal board shouldn’t fill the hole.

“They abandoned the site. Not my client,” Neil Abbott of Gowling WLG, counsel for WestGate Properties Ltd, said.

“In our view, this was a rush to judgement by the city. They presented a solution without a problem.”

The final day of the appeal was highlighted by a dismantling of the city’s building inspector, Jeremy Chalupiak, who issued the order to fill the hole on April 3, 2018.

Chalupiak issued the order to comply just one day after taking over the Capital Pointe file from the previous building inspector. On top of that, it was revealed that Chalupiak didn’t write the order to comply, instead it was written by his supervisor, who is not a licensed building officer.

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It was also noted that the order to comply was issued before the city received a letter from the former engineer of record, Isherwood Geostructural Engineers, advising them to decommission the site.
When asked how the city was able to ascertain the site was unsafe, Chalupiak was unable to provide a firm response, adding that “the previous building inspector may have been in contact with [Isherwood], I wasn’t.”

Hydrogeologist and civil engineer Ibrahim El-Baroudy was called by the board as a neutral witness. He sided with WestGate in his assessment that the Capital Pointe site is stable, at least until December 2019, but he wouldn’t say it’s safe.

“Safe gives notion to the public that it’s under control and nothing will happen. That may be misleading. There is a chance of failure,” he told the appeal board.

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When asked if the temporary shoring at the site had already failed by shifting between 36-40 millimetres on the south wall and northeast corner, El-Baroudy deferred to Isherwood Geostructural Engineers, noting, “the former engineer of record defined failure as 20mm [of movement], according to the designer, yes that’s a failure.”

El-Baroudy went one step further, arguing that the questions raised by the City of Regina were legitimate concerns. Some of those concerns were that the ground water table was not accounted for in the modelling, the numbers used to determine the factor of safety may be incorrect, and that the site could fail should it sustain a catastrophic event, such as a water main break.

“It’s important to note, [WestGate’s] conclusion is that the shoring is considered safe from a geotechnical point of view according to some calculations,” he said. “But considering the risks of any sort of failure, we think it’s better to render the site with any mitigation method as soon as possible.”

El-Baroudy wouldn’t say whether or not he suggested to fill the hole, as requested by the city, or defer to further monitoring; a recommendation made by the expert witness for WestGate.

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The decision now rests in the hands of the appeal board. According to Saskatchewan Building and Accessibility Standards website, “when an appeal is heard the board will provide a decision in writing within 30 days.”

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Regardless of the board’s decision, the property will still remain under the control of WestGate Properties Ltd., but they won’t be able to do much with it.

WestGate hasn’t had a building permit for nearly a year, and if they wanted to continue construction their engineer recommends, they conduct a detailed design review of the temporary shoring, and conduct some remedial work.

It’s a question Christine Clifford, counsel for the City of Regina, asked the appeal board.

“Where is WestGate here to explain what happens after December 8? Why aren’t we talking about that? What is their plan and why shouldn’t the board confirm the order [to fill the hole]?”

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