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Elliot Lake commission poised to take legal action against mall owner

Dale Craig, a professional engineer, testifies on building design and construction at the collapsed-mall inquiry in Elliot Lake, Ont., on March 5, 2013.

Colin Perkel/The Canadian Press

A frustrated commission probing the deadly collapse of a mall's roof-top garage in Northern Ontario is poised to take the owner to court for failing to turn over thousands of documents, The Canadian Press has learned.

At issue are e-mails to or from Bob Nazarian that the commission believes are directly related to the Algo Centre Mall.

As a required prelude to court action, commissioner Paul Belanger has formally ordered Mr. Nazarian to comply with several summonses to turn over the material.

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Mr. Nazarian is a key figure in light of allegations – strenuously denied – that he failed to carry out proper maintenance that might have averted last June's tragedy, in which two women were killed.

Mr. Belanger's order, issued last month but which has had no response to date, also applies to Mr. Nazarian's wife, Irene, and son, Levon.

Commission counsel refuses to discuss the matter publicly, but has been trying since September to get the documents.

"E-mail and web-mail accounts had been used to conduct matters relating to the Algo Centre Mall by Robert, Levon and Irene Nazarian," Mr. Belanger's order states. "No e-mails from these accounts had been produced."

At one point, the family's lawyers claimed provincial police had seized the material as part of a criminal probe into the mall's collapse.

Other requests were met with promises to produce the materials right away, or weren't acknowledged.

Sources said the e-mails in question were on U.S. servers and provincial police had not found them.

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Mr. Nazarian could not be reached at home on Tuesday, but when asked about possible legal action to force production of the documents, one of his lawyers insisted they were working diligently to gather and screen the requested material.

"It's not an attempt to bury documents or hold anything back," lawyer Michael Title said from Toronto.

The summonses involve about 40,000 e-mails, some of which Mr. Title called "private and utterly irrelevant."

Captured by the commission's requests were also Levon Nazarian's e-mails.

"There was some resistance to the intrusiveness of this," Mr. Title said.

"[Levon Nazarian] was not terribly happy with the request."

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Hearings into the tragedy began this week and are proceeding chronologically, starting with the design and construction of the mall.

Mr. Nazarian is expected to testify in about four or five weeks, and the commission was hoping to have the e-mails long before then.

Mr. Title said they would comply with Mr. Belanger's order but did not say when.

"It's a large task to screen the relevant from the irrelevant," he said. "We only have 4,000 e-mails left."

Still, sources familiar with the situation said the commission was fed up with the delays and would be looking to Ontario's Divisional Court to force compliance.

"The hammer is about to come down," one source said.

On June 23, 2012, part of the mall's roof-top parking deck, which had serious water-penetration issues since it was built in 1982, collapsed onto the stores below.

Investigators believe that a weld between a steel I-beam and an upright column failed because of years of rust and salt corrosion.

One issue for the inquiry is why numerous inspections apparently failed to pick up on just how serious the problem was.

On Tuesday, the inquiry heard from Dale Craig, a professional engineer, who provided an overview of putting up a large building, from design to completion.

"Maintenance is often ignored until problems occur," he said. "Out of sight, out of mind."

A structural engineer involved with the building of the mall, and who apparently lost his licence over problems with several other building projects, is slated to testify on Wednesday.

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