Construction workers at Gellatly Place on Nov. 22, 2017. The sign on the door is a stop work order.

(MARSHALL JONES / iNFOnews.ca)

KELOWNA - The developer behind the troubled Gellatly Place condo project in West Kelowna had a testy relationship with city building inspectors going back months before they wound up in court, legal documents suggest.

The City of West Kelowna was granted an injunction against the construction company 1031007 BC Ltd. on March 16 demanding all construction cease on the project, part of an ongoing effort to get the company to comply with the B.C. Building Code and allow mandated inspections during construction of the 33-unit project.

The injunction follows a stop work order filed by the City of West Kelowna, first in August, then again in October 2017, which the city says was routinely ignored.

In support of the application, a lawyer for the City of West Kelowna filed affidavits from inspection services staff and bylaw officers detailing their interactions with the company and majority owner Stewart Smith and his representatives during construction.

Their combined affidavits allege a pattern of lapsed deadlines, denial of entry, missing technical documents and an ongoing lack of cooperation on the part of the developer and his representatives, which they say lead to a breakdown in the relationship and the current legal action.

City of West Kelowna building services manager Geoff Brownlie said in his affidavit in support of the injunction his role was to supervise inspection services and he first had indication of problems with Gellatly Place in June 2016 when one of his seasonal building inspectors reported work had already gone past the scope of the foundation permit.

Brownlie said his staff later identified "significant problems” with construction of the project including deficient fire stopping measures and fire wall construction.

That’s when Brownlie said a pattern began emerging where elements of construction such as water and sewer connections would be somehow covered before his inspectors arrived.

Plumbing inspector Robert Newmarch said on May 25, 2017 he found storm and sewer connections that had been buried without inspection and testing.

Underground drainage piping had also been buried after partial inspection and concrete had been poured prior to inspection and approval, making meaningful assessments impossible, Newmarch said.

Newmarch also said he had worked with Falcon Engineering to create a remedial plan for the missed sewer inspections which would have required a hydraulic test and camera inspection witnessed by West Kelowna inspectors.

Instead, Newmarch said West Kelowna later received two reports from Falcon Engineering in which it was claimed the tests had been completed and had been witnessed by a city representative, when in fact they hadn’t and couldn’t have been done legally anyway because a stop work order was in place.

At one point in October 2017, West Kelowna bylaw officer Kristian Josefsson says Robert Smith, the developer’s father, told him “people are going to get hurt if this issue becomes personal or political,” suggesting “they would own the city.”

This came after Josefsson and a building inspector had earlier been denied entry to re-post a stop work order that had been removed.

Brownlie said later in his affidavit he was “very concerned” the developer planned to try and convey the units to individual owners without addressing “serious life safety deficiencies” and without advising the contract purchasers about them.

As recently as January, acting senior building inspector Elroy Dueck said he went to the Gellatly Place site and found remediation to some of the earlier deficiencies had already been completed without authorization or inspection, including work to the deficient firewall.

Dueck also said he thought the developer and his contractors would “continue to conduct unpermitted, unapproved and potentially inadequate repairs to the extant life safety issues” identified by the city.

Stewart Smith tried to rebut the city in an application filed in December to have the original stop work order set aside.

A main point of contention, he said in his defence, is the city failed to act on recommendations from Blue Green Architecture on how the perceived construction deficiencies could be remediated.

Smith further contends the deficiencies noted by West Kelowna building inspectors were "works in progress on an incomplete building, not true deficiencies.”

The developer also said the stop work order prevented him from fixing earlier deficiencies and the city was refusing to accept field reports from other professionals in lieu of inspections, contrary to its own regulations.

Smith finally contends building inspectors gave him the false impression he could still proceed on some aspects of construction by not consistently enforcing the stop work order.

Smith declined an opportunity to comment on the record for this story.

The disputed development has already cost several would-be owners of Gellatly Place condos, who got their deposits returned this week. Some have said they are considering legal options because in the two to three years since they placed those deposits, prices have surged in the Central Okanagan leaving them with fewer — and far more expensive — options.

None of the issues or allegations were tested in court when a judge granted the injunction. That will have to wait for a formal trial, if they are not resolved before then. 

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