Company files $16.8M lawsuit against Assiniboine Park over construction of the Leaf

A Winnipeg construction company is suing the city and the Assiniboine Park Conservancy for more than $16.8 million after it says it was not fully compensated nor able to do its work correctly on the Leaf, a popular horticultural attraction.

In a statement of claim filed by Bird Construction Group on Oct. 16 at the Manitoba Court of King's Bench, the construction company alleges the conservancy misrepresented the project, and breached trust and the construction management contract for Canada's Diversity Gardens, which includes the Leaf.

The company is suing for the $16.8 million it says it is owed, legal costs and special and punitive damages.

The lawsuit claims the actions of the conservancy — the non-profit corporation that manages the park — "constitute a callous and wanton disregard for the interests of Bird and warrants an award of punitive damages."

The allegations have not been tested in court and a statement of defence has not been filed.

Laura Cabak, a spokesperson for the Assiniboine Park Conservancy, said the organization acknowledges there were some challenges during construction of the Leaf but plans to file a defence against the claim.

"There is a disagreement among the project team members regarding responsibility for these issues and the associated costs," Cabak wrote in an email to the CBC.

CBC News has reached out to the City of Winnipeg for comment but has not yet received a response. 

Canada's Diversity Gardens, initially announced in 2015, was funded by private donations and all three levels of government. The city owns Assiniboine Park, where the gardens are located, and the conservancy operates the park.

The Leaf, a 92,290-square-foot botanical conservatory, opened its doors in December 2022. It cost $130 million, well over its initial price tag of $75 million. 

It was originally slated to open in late 2020, but there were construction delays.

'Interfered with' work 

The conservancy initially sought requests for proposals for construction management services in December 2016, the statement of claim says. The request included total construction costs estimated at around $61 million, with a completion date of October 2019.

Bird was named the successful applicant in February 2017, the lawsuit says. The project "was sufficiently finalized" before Bird submitted its proposal, the claim says.

The conservancy "interfered with, impacted and delayed" Bird's ability to provide its services as well as its performance on the project, as it was under budget and time constraints from its funding agreements, the suit says.

It also "failed to engage competent, knowledgeable, skilled and experienced consultants" for aspects of the construction project, including the design of the roof, which consists of a translucent membrane supported by a cable net system, the court documents say.

It also did not engage or obtain adequate engineering services needed for the project, the lawsuit claims.

The project design work was not done "in a good and workmanlike manner," and did not ensure that the project itself wouldn't be negatively affected, the lawsuit claims. 

In January 2023, the city and the conservancy were served notices by Bird regarding its claim for a builders' lien of about $23.8 million; the conservancy had paid about $7 million of that before the lawsuit demanding the rest was filed.

Three lawsuits were filed in 2021 in relation to the construction project — two filed by the conservancy, and one filed by a construction company subcontracted by Bird, which alleged it was still owed about $822,000 for its work on the project.

The conservancy filed a suit against Architecture49 Inc. of Winnipeg and Toronto firms Blackwell Bowick Partnership Limited and KPMB Architects, seeking damages it says are related to the costs of remedial work, project delays and operational losses.

The conservancy filed a separate lawsuit on the same day against Royal & Sun Alliance Insurance Company of Canada over the insurance policy on the project.