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History grows at Hatley Park

BY KEITH NORBURY

The Butchart Gardens is probably Canada’s most well-known horticultural attraction. However, about 20 km to the south on the west shore of Greater Victoria are the gardens at Hatley Park — a national historic site that today encompasses Royal Roads University.

The two Vancouver Island-based gardens share a key piece of Canadian landscaping history. The same man, Isabuo Kishida, designed signature Japanese gardens at both locations, notes Paul Allison, supervisor of gardens and grounds at Hatley Park.

Kishida had come to Victoria in the early 1900s, at the invitation of his son and a business partner, to design a garden to accompany a Japanese tea house at Gorge Park in nearby Esquimalt. Attending a garden party at Gorge Park were Jenny Butchart, the visionary behind her namesake gardens, and Laura Dunsmuir, the wife of former B.C. Premier James Dunsmuir, who had bought the Hatley Park property just a few years prior. While Greater Victoria’s two most celebrated gardens share a similar origin, they evolved into vastly different entities a century later.

“We don’t want to be another Butcharts,” Allison said. “One of the comments that I get from most visitors is that this is a gardener’s garden. Butchart Gardens is a great entertainment garden.”

Hatley Park, and what Allison is responsible for, encompasses much more than gardens. The estate covers more than 565 acres, including more than 15 km of trails that wind through forests of cedars and Douglas firs up to 900 years old.

The historic site also includes Garry oak meadows, a migratory bird sanctuary at Esquimalt Lagoon, Italian and rose gardens, campus gardens, and Hatley Castle, which has appeared as a backdrop in blockbuster movies like the X-Men films and Deadpool, as well as the MacGyver TV series in the 1980s.

“There are probably more people in the forest right now walking their dogs than

A Japanese garden bridge connects some of the more than 15 km of trails in Hatley Gardens.

there are in the gardens,” Allison said during an interview under the shade of a loggia bordering the Italian garden.

AVOID SOAKING JOHNNY DEPP

All that activity poses challenges for Allison and his crew. When he started at Hatley Park 23 years ago, they mowed as necessary. “And nobody ever said ‘shut that machine down,’” Allison said. “Now it’s the opposite.”

For his staff of 14 that includes five seasonal workers, it means a lot of operational MacGyvering, such as protecting the wisteria from the turbulence of helicopters or preventing “the irrigation system from going on and soaking Johnny Depp,” Allison quipped.

One way Allison and crew have kept the noise down is by utilizing electric tools, such as a self-propelled, 56-volt Ego brand mower that horticulture crew member Neil Ross is using on the turf in the Italian garden. “It’s great,” said Ross, who has worked seasonally at the site for about eight years. “Other electric motors I’ve used, when you hit something tough it powers down. But this guy actually powers up and keeps going.”

It’s the beauty and heritage of the site that keeps him coming back, Ross said, as he takes a break with historic Hatley Castle in the background. James Dunsmuir hired famed Victoria architect Samuel Maclure in 1908 to build the castle. In doing so, Dunsmuir followed the lead of his coal baron father, Robert Dunsmuir, who some 20 years earlier had commissioned United States architect H.H. Richardson to design Craigdarroch Castle in Victoria.

After James and Laura Dunsmuir died, the Canadian government purchased the Hatley estate in 1940. For the next five decades, a military college, under various names, operated on the site, culminating with Royal Roads Military College, which closed in 1995. Almost immediately, the B.C. government established the civilian Royal Roads University, which continues to this day.

FIRST NATIONS HERITAGE

The heritage of Hatley Park long predates the university, military college or the Dunsmuirs, Allison pointed out. Local First Nations people — the Xwsepsum (Esquimalt) and Lkwungen (Songhees) — lived in the region for thousands of years.

“If you see Garry oak meadows for sure the First Nations have had something to do with it,” said gardener John Kwaksistala, who is of Songhees and Wei Wai Kum ancestry, the latter from Campbell River on northern Vancouver Island.

His work at Hatley Park is diverse. On this day, he’s building a rock wall.

“When you’re a gardener or a landscaper, you deal with pretty much anything that’s in the ground or in the garden,” Kwaksistala said. “So you do anything from irrigation, drainage, hardscaping, softscaping, landscaping, playing with tractors, dump trucks, excavators — all that kind of stuff.”

Kwaksistala previously worked in construction, but despite the good money he got sick of being around concrete and seeing trees cut down en masse. “Because I’m First Nations, I needed to do something with Mother Earth, nature, ecosystems — something like that,” Kwaksistala said.

So he took a horticulture program, which led to the job at Hatley Park.

“I started seeing past the buildings and past concrete in the streets, looking to the trees and the forests and the mountains and beyond what’s just directly in front of me,” he said. “Take a look. Trees and greenery are everywhere. And we need more of it.”

GREEN WITHOUT ENVY

Kwaksistala’s boss, Paul Allison, is equally enthusiastic when it comes to horticulture.

“Green is in the middle of the spectrum,” Allison explained. “That’s why it’s relaxing and balancing.”

Green is also the predominant colour of the Japanese garden. Its lower part — Allison’s favourite — was designed years after the original by Tadashia Noda. Originally from Hiroshima, Noda oversaw the Japanese garden from 1913 to 1927.

Allison himself has designed gardens on three continents. A gardener for more than 50 of his 63 years, he explained it’s a

Paul Allison

calling rather than a career. Originally from Cornwall in the United Kingdom, Allison also spent his winters in Japan, teaching in the landscape architecture program at Tokyo Agricultural University for about a decade during his early years at Hatley Park when he was a summer gardener.

One of his last projects in Japan was helping survivors of the 2011 Tōhuko earthquake reintegrate into nature by encouraging them to grow small gardens.

“It’s very powerful the work that I’ve done; and in that sense, it’s very sustaining,” Allison said.

Allison still teaches, but mostly to MBA students about the “nature” of business. Even then, he invokes what he learned about how the Japanese character for busyness, the kanji, “means to lose one’s heart.”

“If you’re going to be a good businessman, you need to deal with self care,” Allison added.

When teaching, he always asks why people create gardens. Yes, it’s about therapy and connecting with nature, he admits. But it also relates to the Savanna Hypothesis of American ecologist Gordon Orians.

“Our ancestors were looking at the Savanna, which was low-growing grasses, meandering paths or streams, small trees like acacias with branches close to the ground, so we can get in either escaping from the lions or looking at the water hole,” Allison said. “Flowers to our ancestors would mean basically reproduction.”

Grounds worker Courtney Wiens uses an Ego electric mower.

PRESERVING GENETIC STOCK

While the lawns are manicured with electric mowers and trimmers, other parts of the grounds are left to nature in order to preserve the heritage trees. “Somebody might say, ‘Why do we have all these tall grasses?’ It looks like we’re neglecting mowing an area,” Allison said. “And we have to educate everybody and say, ‘No, that’s a Garry oak meadow.’”

As part of its lease with Canada’s Department of National Defence, the university must meet stewardship requirements that include preparing full inventories of plants, trees and structures in the gardens and grounds, and establishing a nursery system to preserve the genetic stock of the heritage trees.

An example of the genetic preservation efforts is a Japanese umbrella pine tree that grew from a seed planted by Kishida’s great grandson. That seed came from a tree originally planted in 1910.

The university plans to upscale its small nursery in the near future, Allison said. Charge hand Martin Parry said the university plans to start taking cuttings of its heritage rhododendrons and sending them out to botanical gardens or even giving them away to the public.

Parry, who joined Hatley Park in the spring of 2021, said the university has applied for grants to assist with the work, but will go ahead with it regardless. That will include propagating beech, tilia and 100-year-old cherry trees, as well as bulbs of native fawn lilies (Erythronium oregonum) and rhododendrons inside and outside of the Japanese gardens.

“And if I can go into the collection, find them and find the age of them, we will propagate those,” Parry said. “If we do nothing and don’t have any gene source going forward, once they’re gone, they’re gone.”

ALL ABOUT THE WATER

The rose garden — overseen by Greg Higgs, Hatley Park’s longest serving employee — recently had an irrigation system installed that eliminates hand watering.

“It’s all automated,” Parry said of the irrigation system. “And as long as we can keep an adequate amount of moisture in the soil, the roses will keep on blooming.” That six-week cycle begins in the spring and can continue until December, he added.

Hatley Park draws most of its own water from the Langford aquifer, so it doesn’t have to depend on Victoria’s regional water supply. Even in sweltering July heat, a spring from the aquifer bubbles from the bottom of a large pond in the Japanese garden. The aquifer is so prolific that the grounds often require additional drainage. “We could be in the middle of a drought and all this water would run down,” Allison said.

A century-old fish ladder made of concrete and stones also aerates the water.

“You’ve got water in so many different forms — the lagoon, the ocean, the fish ladders, the creeks, the ponds,” Allison said. “And then you’ve got this huge diversity of forest and different plant material and the nature that goes along with that. What really makes this kind of special is the balance and harmony of so many different things and the buzz of biodiversity that is here.”

During the interview, Allison occasionally stops visitors from the gardens to ask their impressions.

Allison explained later, “I’m always curious what their perception is. If I had more time, I would say, ‘Why do you like the rose garden?’ Because it’s all sensory data coming in.”

Allison reveals that he has coined a name to describe his calling. “I’m a jardinist,” he said “and a jardinist is using horticulture for political and social change. You won’t hear that anywhere else because I only just created it.” LT

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When does a deficiency claim expire?

The “plausible inference” test may have consequences for construction

BY ROB KENNALEY

IN JULY, THE SUPREME COURT of Canada

introduced a new test for the commencement of limitations periods in Canada.

In Grant Thornton LLP v. New Brunswick, the court held the clock starts ticking on a limitation period when a “plausible inference” of liability arises on facts that are — or ought to be — known through the exercise of reasonable diligence. The court also addressed the extent to which a party might need an expert’s report before such an inference arises.

The decision may have significant consequences for the construction industry. This, because the “discoverability” of construction defects has always been difficult to assess. Consider, for example, cracks which appear in a newly-poured foundation. These might be attributable to shrinkage, not a deficiency. They also might not be worth suing over. Has the owner, upon noticing the cracks, “discovered” a claim against the contractor, concrete supplier, geotechnical engineer, structural engineer and architect, simply because a “plausible inference” can be drawn that the cracks might be a deficiency attributable to something any one of them might be responsible for? Can the owner take a ‘wait-and-see’ approach, or must it investigate the cause of the cracking in an effort to figure out what is going on (and who might be responsible)?

In Grant Thornton, the court was dealing with the two-year limitation period set out in New Brunswick’s Limitations of Actions Act. On its facts, New Brunswick had received a report that financial statements prepared for it by Grant Thornton (upon which the province had relied to its detriment) had not completed in accordance with GAAP accounting principles. New Brunswick did not, however, commence an action within two-years of receiving that report. Rather, it waited for a further report which confirmed the accountants had, in preparing the statements, fallen below the applicable standard of care.

At first instance, a motions judge dismissed the action as being out of time, as the first report gave the province sufficient grounds to commence an action, known as “prima facie” grounds in law. New Brunswick’s Court of Appeal, however, held that the province only discovered its legally enforceable right to a judicial remedy once it had knowledge of each constituent element of its claim. On further appeal, the Supreme Court of Canada reinstated the motion judge’s dismissal. In doing so, the Supreme Court moved away from a prima facie case test, stating: “Since the term prima facie can carry different meanings, using plausible inference in the present context ensures consistency. A plausible inference is one which gives rise to a ‘permissible fact inference.’”

At first blush, it appears the Supreme Court has either confirmed or established a low threshold for discoverability: clearly, the mere plausibility of an inference that someone is responsible for damage is a very low bar. However, the citation above makes it clear that the court found it appropriate to apply the plausible inference test “in the present context.” Indeed, the court confirmed that discoverability is a question of fact to be determined in all of the circumstances, upon the application of the particular limitations legislation. It might be, then, that the change in terminology (from “prima facie case” to “plausible inference of liability”) will not represent a drastic change in the law of limitations, in practice. Time will tell.

However, the court also confirmed a plaintiff need not know the exact type of harm it has suffered, or the precise cause of its injury, for the limitations clock to start running. In addition, it confirmed the principle that a plaintiff must exercise reasonable diligence in discovering its claim, such that even a suspicion may be enough to trigger an obligation to investigate. It is in how the court addressed the role of expert reports in the investigation and discovery of claims that, in our view, the Grant Thornton decision became potentially very significant in the construction industry. continued >

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Prior to Grant Thornton, it had been held (in Ontario at least, for example) that a lack of due diligence to investigate is not necessarily fatal to a claim and that it may in some cases be necessary for an expert’s opinion or report to be obtained, particularly where an investigation is required to determine the cause of the damage, where the matter is complex and where establishing liability depends on expert analysis. The Court in Grant Thornton, however, held that the “standard cannot be so high as to make it possible for a plaintiff to acquire the requisite knowledge only through discovery or experts.” It is unclear whether this statement was intended to address the role of experts in all cases or, rather, only where both damage and causation are already known and a report is required to confirm liability (as was the case in the matter before it).

Only time will tell us what the impact of Grant Thornton will be. In the meantime, construction participants who face a potential claim’s expiry should anticipate that defendants will closely scrutinize the timing of an action and (increasingly) oppose claims they believe may be out of time. Also, potential claimants should be cautioned that awaiting a report on causation or liability may not be as permissible as it perhaps once was. Accordingly, once parties become aware of a possible claim, they would be well-advised to seek counsel as to how to preserve and protect the possible claim.

There is this to be added: In some provinces, statutory exceptions to the “discovery” principle may play a role. In this regard, the Limitations Act in each of British Columbia, Saskatchewan and Manitoba provide that a claim will not arise until “having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it.” In Nova Scotia, the Limitations Act imposes a “sufficiently serious” exception, providing that: “A claim is discovered on the day on which the claimant first knew or ought reasonably to have known that the injury, loss or damage is sufficiently serious to warrant a proceeding.” Whether or not such exceptions might extend the limitation period in any circumstance is beyond the scope of this article, but it should be noted that such clauses may provide relief where it is found that a claim ought to have been “discovered.” LT

ROB KENNALEY

is with Kennaley Construction Law, a construction law firm with offices in Simcoe, Toronto and Barrie.

Aligning technology to your landscape business goals

BY MARK TIPTON

CEO & co-founder, Aspire Software

In 2021, the technology you use to run your landscaping business shouldn’t be an afterthought. The platform you choose can have a serious impact on your company’s ability to reach its goals. Working with a frankensystem of disjointed solutions and manual processes doesn’t just slow down progress, it can actually send you in the wrong direction—often without even realizing it.

When you use a comprehensive business management system like Aspire, you can confidently set and measure realistic goals. Aspire connects all of your data—from estimating and scheduling to purchasing, invoicing, job costing, and more—so you have full visibility into your business operations. This level of insight allows you to stay on track by making more informed, proactive decisions.

Real-time data Accurate, real-time job costing data is critical if you want to monitor progress effectively.

Aspire Landscape’s best-in-the-industry job costing features yield real-time insights by division, service type, property, manager, crew leader, or work ticket— allowing you to get as granular as possible to review expenses‚ and make changes if necessary.

Accuracy Most landscape contractors underestimate their costs by at least 1%, which adds up to $48,000 in lost profits for a $3 million company. One of the quickest ways to boost revenue without incurring additional costs is to evaluate your estimating process. The more accurate your bids, the better chance you’ll have at reaching your goals.

To make the bidding process more efficient and accurate, Aspire Landscape allows you to create kits— sets of commonly used items with pricing associated. (For example, you could have a shrub kit that includes the cost of the plant, soil, mulch, and labor hours needed for installation.) You can even set up templates for bidding similar types of jobs.

This doesn’t just save you time in the long run—it also increases consistency and accuracy between estimates.

Support Software can’t help you reach your full potential on its own. It needs users to build and review reports, update work tickets, assign pricing, and distribute schedules. To get the most out of any platform, users need to be equipped for success through a robust implementation process and dedicated support services.

At Aspire Software, our commitment to customer success starts with a 60-day implementation process and continues with our AspireCare support team, client success managers, and on-demand knowledge base. Aspire Landscape has the power to take your business to the next level, and we’re here to make sure you get there.

Technology doesn’t have to be your enemy. If you can harness its potential to bring your business processes together under one roof, it can unlock the level of realtime visibility and flexibility you need to identify—and exceed—your landscape company’s goals.

Utilized by more than 51,000 users in over 1,200 locations, the Aspire platform is trusted to manage nearly $4 billion in landscape industry revenue.

For more tips on growing your landscape business, or to learn more about how landscape business management software can improve your profit margins and boost employee retention, visit youraspire.com.

The problem with unit pricing

Assuming a fixed cost per item may be detrimental to your bottom line

BY MARK BRADLEY

PRICING WORK BY THE UNIT is as old as the landscape industry itself. Many contractors use this pricing system as their default method. Others are forced into unit pricing by cities, architects or project managers who insist on getting bids in a unit price format. No matter why you’re doing it, recognize that unit pricing is hurting your company’s profits, not helping them.

Unit prices seem easy

One of the most significant problems with unit pricing is assuming a fixed amount of labour per item. This might be 1.5 hours per tree or 0.15 hours per square foot, but that labour is just an average. While it might help you guesstimate the time it’s going to take to complete a job, it’s more than likely to hurt your profits when submitting a unit price bid.

Using unit prices is like forecasting the average weather. The average temperature might be 9 C, but that doesn’t tell you how to dress each day. What if it rains? If you woke up and dressed for the average temperature, you’d rarely be dressed appropriately.

Let’s say you have a job where you have to plant 20 trees. You’re going to send a four-person crew and figure they can plant those trees in nine hours. Your cost will likely include labour ($720), equipment ($550), trees ($4,000), delivery charges ($400), overhead recovery ($540) and other materials ($1,000). The cost accumulates to $7,060 or $353 per tree, and your price estimate is $11,700 or $585 per tree.

We’re okay here because we calculated the $585 based on the estimated job labour. We’re as close to accurate as we can reasonably get.

Bid changes typically hurt the contractor

Now let’s imagine the customer says: “Thank you for your price. We’re a little bit over budget, so we only want you to install 15 trees.” I’ll draw up a PO for 15 trees based on $585 per tree, for a total of $8,775.

Unfortunately, in this instance, your costs as a contractor do not drop proportionately to the materials. Here’s why: • Trucks still need to be loaded and leave the yard. • The vehicles still need fuel and must be loaded. • It takes the same amount of time to drive to the site. • Equipment must be tied up on the site for the day. • Delivery charges remain the same. • The crew will not clock out at 3:15 p.m. because there are fewer trees, so they’ll likely stretch the job out to the end of the day. • Overhead on this job doesn’t decrease. We still have the same rent that day, and spend the exact time ordering and managing the work on this project. • So let’s revisit our estimate, but this time with only 15 trees.

The original estimate of $585 per tree isn’t very good at 15 trees. The cost per tree increased from $353 per tree to $390 per tree, and our price is $585 when it should be $647 per tree. Now our company is eating $100 per tree in increased costs and lost revenue and we’re under-bidding this job by $1,500.

Bid increases can hurt too

Let’s imagine we’re the low bidder at $585 a tree. They liked our bid so much, and they increased their budget from 20 trees to 30 trees.

However, 30 trees are too many to plant in a single day, so we’re going to have to send the crew back for a second day to plant the extra 10 trees. In reality, we’re not going to get to a second job that day. By the time we mobilize, install the trees and break for lunch, there’s not enough time left in the day to start another job.

In this scenario, our cost per tree increases to $374 from $353. It’s not quite as bad as the previous example, but increased costs and decreased revenue means we’re eating $60 per tree and under-bidding the job by $1,800.

The average price is rarely right

There are scenarios where unit pricing can work in your favour. Not every change hurts the contractor, but changes are far more likely to be to the contractor’s detriment than to our benefit — especially

when contracts are awarded on a low bid basis.

Average unit prices are rarely correct. They cannot factor in significant job variables: • Are we installing five or 100 trees? You’ll undoubtedly install the 100 trees faster per tree as economies of scale kick in. • What kind of equipment is available for the job? • How are materials being picked up and delivered? • What’s the access like to the planting location? Soil conditions? • Which crew is expected to do the work? • What season will the work be done?

Cost-based pricing

If you are pricing your work with unit pricing, it’s time to stop. It would be best if you always were cost-based estimating using actual labour, equipment, materials, sub and overhead recovery costs when arriving at your bid. Not only will you have a more accurate price, but you’ll also have a clear plan about how long a job should take, what equipment and material should be delivered, and what your actual net profit is.

If you have a customer or bid that insists on this pricing method, you have little choice but to roll with the punches, but always consider the impact of potential changes. If possible, ask for the opportunity to re-price before you agree to any changes. And at the very least, take the opportunity to educate your customer. Every job is different, but remember, the price is rarely right when pricing is based on averages.

Master the upsell

Whether you do design/build or maintenance, there’s no profit margin like an upsell margin.

Look for materials that are installed with minimal labour — such as plants, patio furniture, lighting kits, decorative structures or art pieces — and work them into your sales processes. These materials and products typically have substantial markups and drive revenue increases with few labour hours added.

Every accomplished business owner will tell you that knowing your numbers is critical to success. For landscapers, your field labour ratio is the key to maximizing labour productivity. Put these strategies into practice to improve your field labour ratio, and you’ll be well on your way to potentially doubling your net profits. LT

MARK BRADLEY

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