APTN National News
“I would never want to build over an area where there are burials,”
-Alan Furbacher, developer
It was a proud moment between father and son that day back in May 2009 when Alan Furbacher stood next to his dad on a site in downtown Barrie, Ontario, where he was going to build the largest project their company had ever done.
Furbacher’s dad started the family business in 1954, but never built something like his son was about to.
“My dad thought it was a beautiful project,” said Furbacher, 59, of the 150,000 square feet of condos, hotel and restaurants on a three-and-a-half hectare site known as the Allandale Station lands.
Barrie was calling this its “legacy project.”
It was to be Furbacher’s legacy project, too – with a price tag of $65 million to build – and he was going to partner with the YMCA, who wanted Allandale to be their new home in Barrie.
“We thought this had the quality of a world class project,” said Furbacher, of the Barrie project an hour north of Toronto.
Infrastructure was supposed to begin on the site a few months after Furbacher signed a preliminary agreement with Barrie on May 12, 2009.
There were clauses in the agreement that needed to be checked off – one was the transfer of title on the land for $2 million.
The city first sent Furbacher a purchase and sale contract July 28, 2009, a couple months after learning Furbacher’s bank needed an environmentally clean site.
The city put in the contract they wanted Furbacher to be on the hook for any archaeological and environmental issues that may come up.
He said this was the first time it was discussed, as he’d been in talks with the city for months and was expecting a shovel ready site.
Furbacher amended the agreement and sent it back to the city August 24, 2009 saying, among other things, the city would assume any risk of potential environmental and archaeological issues.
This is about the time his deal with the city began to unravel over a two year period.
Staff at the city knew things Furbacher didn’t.
Mainly, the land was likely contaminated from years of operating as a major rail yard from the 1850s to 1990s.
Barrie was also aware that a rare Huron-Wendat village had been found in 2001 on the same spot Furbacher was going to build.
More so, they knew documented burial pits, known as Huron-Wendat ossuaries, had been reported throughout the years on the land.
None of this was told to Furbacher went he put in a bid to build the project.
If Furbacher signed the agreement on the first draft he would have been on the hook for costs associated with potentially cleaning up the soil and checking for burials.
“I would have been signing my own death wish,” he said. “I would never want to build over an area where there are burials.”
He never would find out about the burials and soil contamination until he later sued the city after the deal fell apart near the end of 2011. The matter remains before the courts and has yet to go to trial.
Swear to tell the truth, nothing but the truth
This is a travesty for First Nations people,”
– Stephen Bauld, procurement expert.
According to experts in the government procurement business, the city should have been upfront with any information it knew of contamination and burials in the initial request for expression of interest (RFEI) that attracted developers, like Furbacher.
Stephen Bauld literally wrote the book on it, called Municipal Procurement, and is considered a leading expert.
Bauld said he has reviewed documents of what happened between Barrie and Furbacher.
“This is a travesty for First Nations people, “ said Bauld. “This is the one of the worst things I’ve ever seen, maybe ever.”
Architect Jim Strasman was hired by the city to design the site’s master plan for the REFI and said he was never told of the documented burials or possible contamination.
“That’s a show stopper,” said Strasman. “You would down tools immediately until that was somehow resolved.”
But, after Furbacher refused to sign the purchase agreement the city hired Golder Associates, a soil testing firm to do a Phase 1 review of the site.
What they would find was also be kept from Furbacher and everyone else.
Golder was commissioned by Barrie in November 2009 to begin a Phase 1 report, basically a historical review of what was once on the site, something all banks require for financing on commercial properties.
Based on its review, Golder said potential environmental concerns included, the “former presence of railway lines, including the use of rail ballast and the placement of fill. Contaminants of concern include metals and inorganics.”
Golder said a Phase 2 soil testing would be required to be certain, which the city paid them to do.
By January of 2010, Golder was testing the ground. They found contaminants such as mercury and lead exceeding the Ministry of Environment guidelines and chromium, sodium and chloride in the water above acceptable limits.
Golder said if the ground was to be developed the soil would need to be taken to an off-site disposal site approved by the MOE and any development monitored by an environmental consultant.
They also called for most tests on the north part of the property where there was a berm, or hill. There they found 19 contaminates that exceeded MOE guidelines, such as mercury, lead, arsenic and polycyclic aromatic hydrocarbons, including benz[a]anthracene and benzo[a]pyrene.
Golder said their testing was “limited” and would not count as a Record of Site Condition, something a developer also needs to build on a site. In order to obtain that, comprehensive testing would need to be done – to date it never has been.
In total, Golder completed three reports for city staff, but they were never shared with Furbacher while he and the city continued to negotiate the project up until the end of 2011.
They also weren’t shared with the public until late 2012, when the city first went to court with Furbacher who wanted to stop the city from having someone else develop the land. It was then that he first learned of the reports.
“From what we know now… I have estimates of, if we just dug out the underground parking, not counting potential remediation of other areas, we could have been facing costs of anywhere from $10 to $15 million,” said Furbacher, as the soil would have needed to be hauled to a disposal site.
Barrie also hired AMICK Consultants in November 2009 to review the site for any archaeological concerns. Furbacher said he was never told of this, either.
AMICK told the city there was documented burials on the ground, likely containing hundreds of bodies belonging to the Huron-Wendat people who occupied the land for hundreds of years up until about 1650. AMICK told the city most of the site would have be stripped and a team of archaeologists would need to search for the burials.
“It is a documented cemetery. (While) it may not be officially registered as a cemetery, it is a documented burial ground,” said AMICK owner Mike Henry, of the Allandale site. “It is a cemetery, so you have to be darn sure that area is contained.”
The city also never shared AMICK’s report, completed in June 2010, with Furbacher or the public until April 2014, again when Furbacher was taking the city to court and they were about to be put on record.
Stephen Bauld said all reports should have been immediately shared with Furbacher.
“Two days into the project; I’m not talking about two months or two years. When some of this information came to light – full stop,” said Bauld. “To dig this up, with the contamination, and for nobody to bring it forward in a government setting? It’s appalling.”
Bauld said the foundation of municipal procurement is based on transparency.
“This is of such a magnitude that you just don’t see this type of thing,” said Bauld. “It’s really difficult to comprehend this even for me. You just don’t see one mistake on top of another mistake, on top of another, on top of another. These are horrific … they can’t even be called mistakes.”
Barrie has said in court documents it acted “properly and within the scope of its duties at all material times” in regards to environmental and archaeological conditions according to the statement of defence.
Barrie told APTN it was too soon in negotiations to be discussing environmental and archaeological concerns, but wouldn’t directly answer why they tried to get Furbacher to sign a purchase agreement with the environmental and archaeological clause in there.
According to former Barrie mayor Dave Aspden, city council were never given the Golder reports, either.
Aspden, who was mayor from 2006 to 2010, did recall a confidential report staff provided council the very last day of their term on Nov. 29, 2010.
It mentioned mercury contamination, but none of the other contaminants.
“That is the first that I can recall being made aware of any contamination or any problems with the site,” said Aspden of the confidential staff report.
Council got that report months after Golder had completed theirs.
“The first I saw (the Golder) reports were when I had the opportunity to look them over just recently, because I had never seen those reports. I have no recollection of ever seeing those reports and I have no recollection of them ever being included in any staff report,” he said.
The same goes for AMICK’s report on the burials, he said.
In 2011, more soil tests were done by Terraprobe, a Barrie company that employed a city councillor at the time, Brian Jackson.
A small number of test pits were done on soil near Gowan Street that borders the site to the north, also where GO Transit built a new station as part of this project.
Terraprobe found dozens of toxins in the soil that was so bad, if dug up, it couldn’t be reused as fill. It found toxins like mercury, lead, arsenic and bezene.
APTN asked Barrie why that report has never been shared with the public.
“There was no need to post the report on the city’s website; it was available to construction companies interested in bidding on the road reconstruction project,” said the statement. “The City of Barrie includes geotechnical reports in its construction tenders to permit bidders to submit more accurate bids.”
Which begs the question, why didn’t Barrie share the Golder reports with Furbacher when the city got them?
Barrie has confirmed if any of the site is developed the soil will have to be removed, but is considered safe as is, according to this release.
Can we make a deal?
They’re begging me to come back … They had no takers and said they were embarrassed,”
– Alan Furbacher
Around the time the Golder reports were commissioned, the YMCA dropped out of the project and the city and Furbacher eventually decided to keep going, despite with no purchase agreement signed.
But it didn’t go well.
The project had changed and, subsequently, the amount of land Furbacher was going to purchase changed, too.
He wanted to pay less for the land.
Barrie wanted him to pay more, as they had an appraisal done on the land in August 2010 and it was now valued at $3 million.
“They tried saying that half the site is worth $3 million, we’re saying the appraisal is (allegedly) fraudulent and misleading,” said Furbacher to APTN and also in court documents.
The appraisal noted it was based on the assumption there were no environmental concerns with the land, as well the appraisal was completed on what the land would hypothetically be worth if the proposed project was completed, with condos, a hotel and retail stores.
The city said the $3 million was fair market value.
The following month on July 27, 2010, Furbacher said he was asked to meet former city councillor Alex Nuttall, who is now a Conservative MP, and fellow councillors Jerry Moore and Michael Prowse – all three are named in Furbacher’s lawsuit, that also includes current Mayor Jeff Lehman.
He claims they wanted him to keep going with the project.
But the meeting didn’t happen in Barrie. They met in Newmarket at Milestones. Furbacher said he picked up the cheque.
“I found it strange that we had to meet outside of Barrie,” said Furbacher.
Furbacher had always been negotiating with staff and claims to have gotten many calls from councillors wanting him to make a deal with the city.
It just didn’t happen and by December 2010, Barrie told Furbacher their exclusive negotiations were over.
In June 2011, the city decided to put the land back up for sale and asked Furbacher to make another bid, which they declined, again.
It doesn’t appear the city got any other worthwhile bids for the site and Furbacher claims by the end of 2011 he got a call from Nuttall on a cellphone belonging to Moore.
“They’re begging me to come back,” said Furbacher. “They had no takers and said they were embarrassed. Again, they didn’t give me any of the Golder reports or anything else.”
But, Furbacher never did come back.
Instead, the matter found its way to court.
The lands have not yet been sold
The process went sideways long before Alan was declared a successful bidder,”
– Denis Chamberland, lawyer
Before Furbacher got involved with the project the city was in talks with a company called Forecast and local developer Mark Porter pitted against the YMCA.
Furbacher would join the YMCA bid, he claims at the request of councillors.
Lawyer Denis Chamberland was one of the lawyers representing Forecast and Porter and said the procurement process lacked integrity.
“The process went sideways long before Alan was declared a successful bidder and it didn’t get better,” said Chamberland.
Most of the issues appear to stem around the YMCA being involved and not meeting various mandatory requirements. City council was accused of disregarding the evaluation process so that the YMCA could be involved.
Chamberland said he was contacted by Furbacher about a year ago and reviewed some of the documents involved in the lawsuit.
“He was the winner in this and by (the time we met last year he) had discovered, or appreciated, all the things that had gone wrong in the process,” said Chamberland.
After losing his first court action against the city in late 2012, after a judge threw the case out, he amended his claim in 2014. Furbacher said he didn’t have the documents then that he has now. It’s unknown when it will go trial, but Furbacher said he’s looking forward to that day and is seeking damages in the millions of dollars.
The city has since restored the old historic buildings on site, at least on the outside for the price of about $5.2 million. They recently bookmarked another $3.8 million to restore inside the buildings. The restoration was originally estimated to cost $2 million.
They hope to have businesses in there by next year, including possibly a coffee shop and wedding reception hall.
But, in the meantime, following Part 1 of APTN’s investigation, Mayor Jeff Lehman has reached out to the Huron-Wendat Nation to set up a meeting.
In that meeting, he should expect to here they want all development on the site to stop.
“We have been faced with many situations where the remains of our ancestors have been unearthed, examined, studied, unilaterally appropriated or simply disposed of like garbage. As in all such cases, this situation is unacceptable to us,” said Grand Chief Konrad Sioui, Friday.