The municipality's ongoing legal battle with some of the owners of the fire-damaged Tyndall Stone Lodge is primed to get bigger.
Two years after a fire destroyed residences and commercial units in the large village building with extensive water, smoke and structural damage, the multimillion dollar legal battle is ongoing over who lies at fault.
More residential and business owners filed a Notice of Civil Claim in the Supreme Court of British Columbia on Nov. 20, essentially putting the municipality, as the operator of the fire department, and other defendants, on notice that they could be initiating a legal challenge. This is one of at least four separate actions.Named as defendants in the recent claim are: Heatherbrae Builders, Pocklington Building Systems, WRM Strata Management & Real Estate Services, Sea to Sky Security and the Resort Municipality of Whistler (RMOW), among others.
They have not yet been served this latest lawsuit, but the possibility remains for the next year now that it has been filed in court.
"Most of the claims are what's called subrogated claims," said Guild Yule lawyer Mark Gyton, who represents the plaintiffs in this latest claim.
He could not speak to the details of this case, but Gyton went on to explain that the various residential and commercial owners have different insurers, which is why there are multiple claims in court. Those insurance companies paid out pursuant to their various policies and they now have a contractual right to pursue damages against defendants who could be at fault.
"That's what's happening in many of these cases," added Gyton. "A large amount of these would have been insured losses, so it is insurance companies looking to get back something that they've already paid out. But there are other losses that weren't insured, for whatever reason."
The 2013 fire erupted not once, but twice, in the Tyndall Stone Lodge building which was in the midst of renovations to the roof and balcony membranes. Some of that work included the use of flame-based roofing torches. According to the latest court document, a fire ignited on the balcony of unit 322 on Nov. 22, 2013 in the late afternoon.
Forty-six members of Whistler Fire Rescue Services (FRS) attended the fire on the edge of Whistler Olympic Plaza, which spread up the exterior of the building into the roof and soffits and into the common attic space. The fire department left the scene at the end of that day.
The strata management company then hired Sea to Sky Security to provide fire-watch services at the building.
"On the morning of November 23, 2013, the Fire re-ignited and caused additional and extensive fire, smoke and water damage to the Building and the plaintiffs' property therein," states the claim, which was filed in court on Nov. 20, just within the legal two-year window to file a claim.
The fire re-ignited at an undetected hotspot in the attic. The sprinkler system went into effect creating more damage to the residences and the businesses below.
Every single fire vehicle was sent back to the scene as crews worked to get the second fire under control.
The notice of civil claim states: "The Fire and Re-Ignition and the resulting damages, losses, costs and expenses incurred by the plaintiffs were caused or contributed to by the fault, negligence and breach of statutory and common law duties of care owed by the defendants to the plaintiffs."
The claim goes on to list how each defendant is responsible. None of the claims have been tested in court.
Among other things, the claim states that the municipality and Whistler FRS failed "to take any, or any reasonable, steps to properly detect and extinguish the Fire and prevent the Re-Ignition."
The claim outlines the damages, which include loss of business income and profits, loss of rental income and additional living or business relocation costs.
The plaintiffs are looking for general damages, special damages and costs, among other things.
Though the municipality has not yet been served in this latest potential legal challenge, it is already involved in a lawsuit against other owners in the lodge.
In its response to the first civil claim, filed in January 2015, the municipality denies it's guilty of any act, omission, or negligence of breach of duty.
"This Defendant (the RMOW) says that at all material times it exercised all reasonable care, skill and diligence in responding to and assessing the Fire and further fire; in controlling, suppressing, extinguishing and overhauling the Fire and further fire; and in training, equipping and supervising its members, servants or agents to fight the Fire and further fire, and this Defendant says that at all material times it followed all reasonable and established standards, procedures, practices and policies for responding to, monitoring and extinguishing the Fire and further fire."
The response then goes on to outline the particulars of Heatherbrae negligence and Pocklington's negligence. Both companies outlined their version of facts in court earlier this year.
Pocklington's response, for example, pointed to the negligence of the named plaintiff, the owners of Strata Plan LMS 2383, including those acting on behalf of the owners, claiming that they:"(Failed) to properly respond to the First Fire," and also failed to "properly monitor for the ignition of a fire subsequent to the First Fire having been brought under control."
When asked for a comment this week, the municipality communications department emailed: "With respect to the Tyndall Stone Lodge lawsuit, the RMOW doesn't comment on legal matters."
Plaintiffs who were reached also did not want to comment.
The fire caused serious disruption and heartache to businesses and residents alike. Several local businesses were left scrambling in its wake, looking for alternative space just before a busy winter kicked off for the 2013-14 season.
Many of them were not back up and running in their former spaces for a year.
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