In dealing with the lawsuit that followed cracking concrete on a runway apron at Erik Nielsen International Airport in Whitehorse, Yukon Supreme Court Justice Adele Kent found liability is split.
A construction contractor, an engineering firm tasked with quality control and the Yukon government will each have to cover their share of more than $9 million.
The main parties to the lawsuit Kent ruled on are Norcope Enterprises, the construction company awarded $3.5 million in work for the replacement of concrete apron panels at the airport; Tetra Tech EBA Inc., the engineering firm; and the territorial government.
The government filed the suit in 2017 seeking to have Norcope pay back what they were paid for the replacement of the concrete surface where planes park and unload their passengers. The construction company countersued, blaming the cracks in the concrete on shifts in the earth below the apron caused by frost and seeking to hold the government and their quality control contractor accountable. The government was seeking $13.5 million in damages for breach of contract and also $1.8 million from Intact Insurance Company who held a performance bond with Norcope.
Norcope and Intact both denied the contract had been breached or that Norcope’s work was deficient. In its counterclaim, Norcope states that the government breached its duty by providing false or negligent information about the project.
Work on the runway apron began in the spring of 2014 and by the following summer, the government brought the alleged deficiencies with the work to Norcope’s attention. Norcope also sued Tetra Tech, alleging the company had failed to provide adequate quality control services as they had been contracted to do.
In a May 2022 trial, the court heard from a total of 17 witnesses. Those who testified included Doug Gonder, the owner of Norcope, past and current employees of the Yukon government and employees of Tetra Tech. Outside engineers who participated in the design of the apron or who could simply offer expert evidence also spoke.
Having heard from the witnesses about the contracts and construction practices and viewed the airport apron on the opening day of the trial, Kent delivered a 93-page judgement that details the role played by the project’s design and decisions made regarding the concrete mix and other products used for the apron in the concrete’s eventual failure. The court also heard evidence about differing views on how much shifting ground due to frost affected the integrity of the concrete panels and whether reports on the project contained falsehoods or amounted to negligence.
“No one on this job did their work competently and the fact Tetra Tech failed in its [quality assurance] and [quality control] roles and Yukon failed in its supervisory role does not take away from Norcope’s responsibility,” Kent wrote in the judgement dated Nov. 14.
“The lack of [quality assurance] and [quality control] and the problematic mix design fall on Tetra Tech. The failure of poor construction practices falls on Norcope. The failure to essentially pay attention to what was happening on the project falls on Yukon.”
Kent assigned Tetra Tech with 50 per cent of the responsibility for the problems, 35 per cent to Norcope and the remaining 15 per cent to the Yukon government.
The judge also found that $9,926,000 was the appropriate amount of damages to be paid by the parties. That amount was ultimately reduced as the judge found that the Yukon had use of the runway apron for eight years, or 32 per cent of the surface’s 25-year lifespan. As a result the actual damages to be paid are set at $6,749,680 of which Norcope is responsible for $2,363,388.
Contact Jim Elliot at jim.elliot@yukon-news.com