Judge rejects request to dismiss 18-year-old, $25 million N.W.T. government lawsuit

FSC engineers and architects had asked the court to dismiss a government lawsuit against it saying it’s taken too long to come to trial, but a judge rejected the request saying FSC only has itself to blame for the delay.

Trial date set for multi-million dollar lawsuit over the destruction of Pangnirtung school in 1997 fire

An N.W.T. Supreme Court judge has rejected a defendant's request that a $25 million government lawsuit be dismissed. (Walter Strong/CBC)

It's been 18 years since the government of the Northwest Territories laid its $13 million claim against what was then a Yellowknife engineering and architecture firm, but the case may finally be heard.

This is after an N.W.T. Supreme Court judge unambiguously rejected a request by the defendants to have the case dismissed based on how long it's taken to come to trial.

Accumulated interest on the claim has almost doubled the stakes. As of January, with interest charges the claim had grown to almost $25 million.

The territorial government is suing Ferguson Simek Clark Engineers and Architects (FSC) for damages and interest following a fire in 1997 that completely destroyed a school under renovation in Pangnirtung, Nunavut, when the hamlet was a part of the N.W.T.

Lawsuit filed in 1999

Among allegations made in the government's 1999 statement of claim, FSC, and its agents, are accused of failing to install adequate fire protection in the school as part of contracted renovations.

In the past two years, two schools in Nunavut have been destroyed in fires, including the Peter Pitseolak school in Cape Dorset, Nunavut, on Sept. 6, 2015. (submitted)

The N.W.T. fire marshal's 1998 report on the fire — conducted by an independent fire investigator — described a fire of suspicious origin that quickly spread throughout, and entirely consumed, the school, which was designed to accommodate about 400 students.

Among the most significant contributing factors identified by the report in the loss of the school were: a sprinkler system that either failed to function or was entirely ineffective and which "failed to conform to several critical design requirements" of the building code and fire regulations; building materials that did not meet the intent of building code requirements related to combustibility; and an ill-equipped and under-trained volunteer fire department unable to deliver the kind of basic fire prevention presumed by building codes.

The fact that non-compliant fire suppression design and installation issues were not identified by the N.W.T. Office of the Fire Marshal as part of its regular duties was also cited as a contributing factor to the loss of the school in the fire.

Case dismissed? Not so fast says judge

Earlier this year, FSC's lawyers tried to have the cased dismissed, saying it has taken too long to get to trial.

But in a memorandum of judgment published on Aug. 16, Supreme Court Justice Louise Charbonneau categorically dismissed the request saying FSC only has itself to blame for the delays.

The judge wrote that it wasn't enough for FSC to point to the length of time it's taken for the case to come to trial, as if that in itself was the sole factor. Instead, FSC would have had to establish the government caused the delay.

But the complete opposite appears to be the case. In her eight-page judgment, Charbonneau made quick work of FSC's arguments for dismissal. She described FSC's handling of the proceedings to date as the primary cause of any delays.

"Courts do not usually allow a party who causes a delay to later use that delay as a weapon against the other party," she wrote in her decision.

The case is scheduled to go to trial on Nov. 6 in Yellowknife. Three weeks of courtroom time have been set aside for it.

In 2011, FSC was acquired by Stantec, a major design and engineering firm with an office in Yellowknife. No Stantec representatives were immediately available for comment on the case.