Susan Faulkner lost her entire building after it was struck by a backhoe in 2009. (Citizen file)

Susan Faulkner lost her entire building after it was struck by a backhoe in 2009. (Citizen file)

City of Duncan wins court case over Red Balloon Toy Store property

Susan Faulkner said she may appeal

Susan Faulkner has lost her longstanding court case against the City of Duncan.

But the former owner of the Red Balloon Toy Store is weighing her options and is considering an appeal of the verdict that was rendered after a five-week trial at the Duncan Courthouse.

Faulkner said the lawyers for the city’s insurers undermined one of her main expert witnesses by using, in part, an error they themselves created and it was pivotal in turning the case against her.

“I’ve been deprived of eight years of preparation and legal fees without a fair hearing,” Faulkner said.

Faulkner was the owner of the Red Balloon Toy Store and the building it was housed in on the corner of Station and Craig streets.

But the old building was ordered to be torn down by the city in 2014 after a city-owned backhoe accidentally struck it in 2009, causing what Faulkner claims was significant damage.

Faulkner was stuck with the cost of approximately $400,000 to demolish the building at the order of the city, which also has plans to take title to the now empty lot, and Faulkner had been fighting the city in court ever since.

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Faulkner started the Red Balloon store in 2001, and bought the building in 2006 as a retirement investment.

It was fully occupied by tenants in 2009 when the backhoe struck a support pillar, causing damage that she claims didn’t manifest immediately.

The building gradually began to shift, and sustained further damage in the summer of 2009 because, Faulkner claims, of construction work on Craig Street.

Despite many attempts to fix and stabilize the structure, WorkSafeBC eventually shut down the building, forcing Faulkner to evict her tenants.

She ended up selling the toy business before she was prepared to, and has since had to start a new business, a Kumon learning centre, at the age of 65 to help make ends meet.

Faulkner said the city and its lawyers produced an incident report during the litigation process eight years ago that appeared to have been written by the driver of the snowplow that struck her building.

But the defendants called a witness near the end of the trial that said that he, not the driver of the backhoe, wrote the report, and that some of the facts in the report were erroneous.

The change in details, which had the backhoe travelling in a different direction when it hit the building than the original incident report stated, was accepted by the court.

Faulkner said she had an expert witness testify at the trial based on the original incident report, but the judge said the error prevented the court from relying on the evidence of her witness.

“That was fatal to the case,” she said.

Peter de Verteuil, Duncan’s CAO, said the City has received and reviewed the reasons for the court’s judgment.

He said the reasons state that the court was not persuaded that the city caused more than cosmetic damage in the backhoe collision, or that the street work in 2009 compromised the foundation or damaged the superstructure, or that the city’s park irrigation damaged the foundation.

“Further, Justice Thompson concluded none of these events measurably accelerated or furthered the pre-existing damage to the building,” de Verteuil said.

“Although the court process has been lengthy and difficult for everyone involved, particularly Mrs. Faulkner, the city is pleased with the outcome and feels it has acted reasonably and with due diligence throughout.”

TO SEE THE COURT’S OFFICIAL JUDGEMENT, CLICK HERE