A new round of legal proceedings is underway in Ontario, where building owners are seeking compensation for costs related to an elevator mechanism that the province’s Technical Standards and Safety Authority (TSSA) ordered replaced more than five years ago. The Ontario court has certified a class action lawsuit, with the Toronto Community Housing (TCH) Corp. as the representative plaintiff, for owners of more than 2,030 safety brakes commonly known as sheave jammers that were designed, manufactured, sold and/or installed by ThyssenKrupp Elevator (Canada) Limited/ThyssenKrupp Northern Elevator Corp.
The TSSA instructed elevator owners to replace the equipment on Dec. 5, 2006 – a more stringent revision to an earlier order that would have allowed them to retrofit the device. Owners were initially given a deadline of Aug. 1, 2007, to comply but this period had to be extended due to the volume of work required, which created supply and labour backlogs.
Counterweight correction
The sheave jammer was one of the most commonly implemented measures to provide so-called “up-fall” protection in traction elevators, which are counterweighted for operating efficiency. Ontario regulators introduced this safety requirement after worker fatalities on a tower construction site in Toronto in the late 1980s. Other North American jurisdictions then followed suit.
“If there are only one or two people in an elevator cab, it weighs less than its counterweight. If the system fails, gravity will pull the cab upward,” explains Cliff Ayling, an elevating device specialist and principal with Ayling Consulting Services Inc. “In response to the safety regulation, there were really just four methods, in the end, that were used.”
Other options on the market included: a double brake system that provides safety redundancy; the Bode brake, which was less popular because it requires a compressor; and the Hollister-Whitney Rope Gripper, which clamps onto the elevator ropes (cables) to halt its movement. The rope gripper became the most prevalent replacement choice to comply with the TSSA order.
Ontario’s new home warranty insurance program, Tarion Warranty Corp., insulated those condominium corporations still within the seven-year window for coverage of major structural defects, at a cost of nearly $2.9 million to the insurer. However, this created two categories of owners within the sector.
“There are those who had it covered by Tarion and those who paid themselves,” reports Sally Thompson, an engineer with Halsall Associates and a member of the board of directors of the Canadian Condominium Institute’s Toronto chapter.
The class action documentation pegs those replacement costs at between $10,000 and $15,000 per elevator. Notably, TCH paid approximately $2 million to replace 167 sheave jammers in it properties, including associated service fees to its maintenance contractor, ThyssenKrupp.
ThyssenKrupp denies the plaintiff’s’ allegations that its equipment was dangerous, defective and negligently produced and sold. It also rejects the claim that it was obliged under maintenance contracts to replace the devices at no cost.
Jurisdictional variance
Although they are no longer a feature in new elevators, sheave jammers are still permitted and in service in other Canadian provinces. Regardless, all owners and operators must adhere to the Canadian Standards Association’s (CSA) B44, the Canadian code for elevating devices, which mandates annual inspection and testing of devices that perform up-fall protection.
Some provinces also have targeted requirements for the ThyssenKrupp Northern Elevator devices. Most recently, British Columbia’s Safety Authority issued an order in March 2012, stipulating the sheave jammer must be dismantled annually, cleaned according to the manufacturer’s specifications and tested following reassembly. These are suggested solutions for cleaning and maintaining components that ThyssenKrupp also put forward to address the TSSA’s initial concerns about the equipment’s tendency to malfunction during testing.
In Ontario, regulatory compliance has long since outdistanced the pace of litigation. Given the TSSA’s inspection oversight, informed observers say it is unlikely sheave jammers could still be found in any operating elevators.
Meanwhile, after a three year process to certify the class action suit, the case is really beginning anew. Certification simply establishes there are common issues that apply across the class. The plaintiffs will now have to prove the merits of their claims.
“We’re still at fairly early stages of discovery but because of all the work we’ve done to certify the class, we feel we are in a good position to proceed,” says Linda Rothstein, a partner with Paliare Roland LLP, who is one of the lawyers representing the plaintiffs.
Upon certification, all owners of elevators that were outfitted with the sheave jammers were automatically designated members of the class and had until May 31, 2012, to formally opt out if they did not wish to participate. Lawyers with Paliare Roland advise all prospective participants to preserve pertinent documentation such as purchase, installation and maintenance contracts, maintenance records and log books, and incident reports related to the sheave jammers.
Barbara Carss is editor-in-chief of Canadian Property Management magazine.
