The Leaf’s legal troubles are piling up.

A construction company claims it wasn’t paid for work to create the expansive exterior and interior glass walls, which are unique features of the Assiniboine Park attraction.

Ferguson Corp., an Alberta company that specializes in building exteriors, claims it is owed more than $440,000 by general contractor Bird Construction and the Assiniboine Park Conservancy for the work it did on The Leaf — Canada’s Diversity Gardens.

In a statement of claim filed in Manitoba Court of King’s Bench this month, Ferguson alleges it entered into a subcontract with Bird to supply and install the exterior wall system, which is made of glazed aluminum, as well as the glazed glass that forms the interior curtain wall system.

Ferguson says it provided all the material and performed the installation work but it was never paid the final $392,925.27 it was owed. With interest added, the company says the amount owing has grown to $441,918.05.

The lawsuit claims while the company has not been fully paid, the conservancy and Bird have benefited from its work and have been “unjustly enriched” since the facility opened in December 2022.

“There is no lawful basis for Bird and Assiniboine Park Conservancy’s retention of the benefit of Ferguson’s services without making payment in full on account of same,” states the lawsuit.

“Ferguson has suffered and continues to suffer the loss and damage particularized here.”

As well, Ferguson is asking for pre- and post-judgment interest and wants the court to order “a full and complete accounting” of all payments made and received between Bird Construction and the conservancy.

The lawyer for Ferguson could not be reached for comment.

Conservancy spokeswoman Laura Capak released a statement: “This new claim is connected to ongoing and existing legal claims related to issues encountered during construction of The Leaf and disagreement between project team members regarding responsibility for the associated costs.

“(The conservancy) will have no further public comment as this matter is before the court.”

No statement of defence has been filed.

The Leaf is not the only building in Winnipeg that Ferguson helped to construct.

The company’s website shows it provided 700 pieces of art glass for the exterior of the Women’s Hospital at the Health Sciences Centre, as well as the curtain wall system at the Asper Clinical Research Institute at St. Boniface Hospital.

The Leaf, the $130-million replacement to the park’s conservatory, opened two years late due in large part to problems with the translucent roof. Construction was suspended in June 2019 and remedial work didn’t start until Aug. 31, 2020.

Throughout construction, the cost ballooned from the $75 million originally budgeted.

The building features four biomes that showcase plants from around the world. There is also a butterfly biome in which exotic butterflies flit around visitors.

The attraction has been beset by lawsuits; by July 2021, three cases had been filed.

The conservancy sued Architecture49 Inc., KPMB Architects and engineering firm Blackwell Bowick Partnership in relation to design defects in the roof which it claims delayed the opening and spiked costs.

In a separate lawsuit, it sued its insurer, Royal and Sun Alliance Insurance Co., alleging it wrongly rejected a claim for roof defect compensation. Supreme Steel alleged in a claim against Bird Construction that it was owed $821,978 for steel fabrication and construction work.

In Oct. 2022, Architecture49 Inc. sued the conservancy, claiming it was still owed almost $1 million for work it did to fix the alleged construction flaws made by subcontractors. The court documents stated the conservancy had said it would pay nothing beyond the initial fixed fee of almost $5.9 million.

Last year, Bird Construction Group launched a $16.8-million lawsuit against both the conservancy and the City of Winnipeg for breach of contract and misrepresenting parts of the project.

The conservancy has since filed a statement of defence and counterclaim that alleges Bird represented itself as experienced and knowledgeable enough to build the project and it is responsible for any problems related to the subcontractors it hired.

The conservancy claims that, if the project wasn’t near completion by August 2020, it could deduct up to $2.737 million from Bird’s fee.

All of the matters are still before the courts.

kevin.rollason@freepress.mb.ca

Kevin Rollason
Reporter

Kevin Rollason is a general assignment reporter at the Free Press. He graduated from Western University with a Masters of Journalism in 1985 and worked at the Winnipeg Sun until 1988, when he joined the Free Press. He has served as the Free Press’s city hall and law courts reporter and has won several awards, including a National Newspaper Award. Read more about Kevin.

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