A Whitehorse condo corporation that owns the Summerhill development in Whistle Bend is suing the builder, city and Yukon government over water drainage issues it claims have plagued residents since 2015.
Whitehorse Condominium Corporation No. 221 filed a statement of claim in Yukon Supreme Court last month, against Evergreen Homes and Construction, the City of Whitehorse and Yukon's department of Community Services.
The lawsuit alleges that all three parties could have addressed or prevented water issues at various points during Summerhill's planning and construction but either didn't take action, or did so after it was too late.
The statement says that as a result, some homeowners, at one point, had to cut into their basement floors and pump out the rising water underneath to prevent their houses from flooding.
The allegations have not been proven in court.
Evergreen Homes did not respond to CBC's request for comment. Spokespeople for the department of Community Services and the City of Whitehorse said they were aware of the lawsuit but declined further comment.
Mark Wallace, the lawyer representing the condo corporation, also declined an interview request.
Excavation pit flooded during construction
The condo corporation's statement of claim outlines a series of alleged failures, beginning with the 2013 pre-design stage of Summerhill, a two-phase development that now consists of 61 detached and semi-detached homes. According to the lawsuit, the city issued a development permit to Evergreen despite the builder not providing a geotechnical assessment or storm drainage analysis.
"Summerhill is located on land that is silty and does not drain water quickly or effectively due to this impermeability," the statement of claim reads. "The lack of geotechnical analysis is directly linked to the inadequate drainage system which Evergreen constructed for Summerhill."
A man-made pond on land owned by the Yukon government and directly next to the development also had a water level that was "very close to the elevation of the footings" of nearby homes, the lawsuit notes. The pond was originally supposed to be a "rain garden," which would not have any permanent standing water.
The lawsuit claims Evergreen was aware of "potential underground water and drainage issues" dating back to at least 2014, when construction was underway and water flooded an excavation pit that would later be used for the foundations of four homes.
While Evergreen built a drainage system, the statement of claim says it was inadequate and largely consists of 12 rock pits. Two of the pits drain into a city storm drain and into the pond, according to the lawsuit, but due to their elevation, only drain when the water is close to the floor joists of nearby homes. The 10 remaining pits don't drain due to the silty soil.
A path around the pond also allows for water to accumulate between the path and Summerhill, and excess water in the pond is pumped into the ground, raising the local water table.
The Yukon government hired a contractor in 2017 to dig the pond deeper to increase its capacity.
Water reached subfloors, lawsuit says
The situation became an emergency in 2018, the lawsuit says, when the water level under four homes that summer rose to the point that it was in contact with the subfloors of some homes.
"In some cases, owners had to cut holes in their floors, install pumps, and run hoses out their back doors directing water to the ditch behind their homes," the statement of claim says, adding that the emergency pumping went on for "weeks."
While Evergreen agreed to build an emergency rock pit with a sump pump to divert water away from Summerhill and into the city's storm drains, the lawsuit says it hasn't completely fixed the problem since water is still building up under houses.
A proper drainage system, it continues, should stop water from entering under the houses at all, but the lack of one has resulted in the need for emergency pumping, "major frost heaving causing cracks in walls," "potential impacts on the stability" of houses, road damage and sinkholes, among other things.
The lawsuit alleges all three defendants have acted negligently and is seeking a to-be-determined amount to pay for the installation of a proper drainage system as well as for damages caused by the current water issues and legal costs.
A trial date has not yet been set.