ONTARIO SUPERIOR COURT OF JUSTICE IN THE COURT OF THE DRAINAGE REFEREE
SW Oxford (Township) v. Burnside & Associates
2013 ONDR 1
DATE OF DECISION:
2013-10-03
2013-01
STATUTE:
HEARING:
BETWEEN:
THE CORPORATION OF THE TOWNSHIP OF SOUTH-WEST OXFORD PLAINTIFF
AND
R.J BURNSIDE & ASSOCIATES LIMITED AND VAN BREE DRAINAGE & BULLDOZING LTD. DEFENDANTS
REASONS FOR DECISION
To: Mr. Paul Courey Courey Law Office, Barristers & Solicitors, 16 Queen St. S., P.O. Box 178, Tilbury ON N0P 2L0 Tel: 519-682-1644 Fax: 519-682-1146 LSUC#32630L Solicitor for the Plaintiff
TO: Ms Sheila Handler McCall Dawson Osterberg Handler LLP 401-114 Dundas Street, London ON N6A 1G1 Tel: 519-672-2108 Fax: 519-672-2436 LSUC#43806D Solicitors for the Defendant, R.J. Burnside & Associates Limited
AND
TO: Mr. Brian T. Daly McKenzie Lake Lawyers LLP 300 Dundas Street London ON N6B 1T6 Tel: 519-447-2627 Fax: 519-672-2674 LSUC#20282H Solicitor for the Defendant, Van Bree Drainage & Bulldozing Ltd
A trial of the issues which have arisen in relation to work completed on the Clear Creek Drain which occurred in 2003 in the Township of South-West Oxford in the County of Oxford took place between November 5th and November 9th, 2012 and continued on January 9th, 10th and 11th, 2013.
This trial is as a result of construction that was mandated by the Clear Creek Drain - 2002 Report occurring on or about July 25th and July 28th, 2003. This work for repair and improvement was as a result of a report prepared by R.J. Burnside & Associates Limited dated August 12th, 2002 which report was completed under the signature of E. Paul Elston P. Eng.
It is acknowledged by all parties that the issues before this Court do not relate to the report itself, its adoption, the tendering process or the acceptance of the successful bid by Van Bree Drainage and Bulldozing Ltd.
At issue was the installation of the drain 833 meters in length of 900 millimeter diameter heavy duty concrete tile. The lands on which the tile was installed were the lands of Hamlock Poultry Limited, the president of which company is Jeroen (Jerry) Van Ham and the lands of A. Vandenbroek who did not attend or give evidence at the trial. The specific portions of land on which the 833 meters of concrete tile were laid were 554 meters on Hamlock Poultry Limited property and 279 meters on Vandenbroek property.
It is the uncontradicted evidence of the expert witness for the Township E.P. Dries of Dillon Consulting Limited that on October 15th, 2002 the Township considered the report of R.J. Burnside and Associates Limited and that the report was adopted by a provisional by-law. On November 5th, 2002, the Court of Revision was held and on November 19th, 2002 the third and final reading was given to the by-law for the repair and improvement of the drainage work in accordance with the report of E. Paul Elston.
CLAIM BY TOWNSHIP OF SOUTH-WEST OXFORD
The Corporation of the Township of South-West Oxford ("the Township"), as the Municipal Corporation in which the drain was substantially located, was and is responsible for the repair and maintenance of the Clear Creek Drain-2002. A Statement of Claim was issued on December 12th, 2008 claiming damages of the Defendants R.J. Burnside and Associates Limited ("Burnside") who provided its services as consulting engineers to the Township with respect to this and other matters under the Drainage Act. R.S.O. 1990.c.D.17 (Drainage Act) and Van Bree Drainage & Bulldozing Limited ("Van Bree") a corporation that routinely tenders on projects under the Drainage Act. Van Bree was the successful tenderer for the work recommended in the report completed by Burnside. According to the Township, in the spring of 2007 problems became apparent with the quality and installation of the drainage tile in the Clear Creek Drain. The Township undertook its own exploratory excavations and advised both Burnside and Van Bree of its demands to repair the defects in the work. The drain improvements were originally completed in August of 2003. The Township's claim is against Burnside for its responsibility for producing plans and specifications adequate to insure that the work was successfully completed and it claimed Van Bree was liable in that without authorization or justification it changed the method of excavation for the tile creating a trench which was not in its opinion properly configured to match the drainage tile being used thereby causing problems with washins and undermining. The Township further claims that Burnside should have known that as it was responsible for monitoring the project of the difficulties that occurred regarding the configuration of drainage tile and that Van Bree knew or ought to have known that the failure to complete the project according to specifications would result in the failure of the tile or lead to increased maintenance costs.
Burnside's defense stated that it met the standard care of a reasonable consulting engineer in the circumstances. It stated that the problems with the drain are nothing more than any other normal drain maintenance issues. The Defendant Van Bree maintains that the work done by itself in performance to the obligations were performed in accordance with the requirements of the contract and that its work was certified substantially completed by the co-defendant Burnside. It further stated that Burnside inspected and supervised its work and did not indicate that it was not in full compliance with the specifications contained in the Clear Creek Drain -2002 Report. Finally the Defendant Van Bree pleaded there was a one year warranty and maintenance period specified between the Plaintiff and Defendant and specified it had expired.
CHRONOLGY IN ARRIVING AT TENDER AND GRANTING OF CONTRACT
After the third and final reading of the by-law 2 for the repair and improvement of the drainage work, Burnside provided the Township of South-West Oxford with 17 tender packages prepared for the purpose of receiving tenders. The letter enclosing the tender packages stated: "if you have any questions regarding the information, procedures or the project in general please contact us.
Throughout the trial it was the consensus of all parties that although it appears no tender package was retained by the Township in its process of soliciting tenders, all parties agreed that the documentation contained in the report4 including the Plans and Profiles were included in the bid packages.
By a letter dated March 26th, 2003 the Township of South-West Oxford under the signature of Wray Ramsay, its Drainage Superintendent, forwarded tender packages to 11 drainage contractors. It should be noted that the date for the bids and the opening of the tenders was April 14, 2003 at 12 noon.
On April 7th, 2003 a letter was completed by the Township to Paul Elston of Burnside advising that in an attempt to reduce costs on all capital works projects the Drainage Superintendent would be supervising construction. The proviso stated in this letter is as follows:
as per the specifications, no adjustments in tile size or gradients or any instruction that changes the proposed work considerably will be made without the Engineers approval.
The letter goes on to state:
Final inspection will still be completed by your office within 20 days after receiving notice that the project is complete along with the required grant forms. If you have any questions please contact myself.
Despite the direction that the Township was taking over supervision, on April 16th, 2003 the Township forwarded to Burnside a summary of tenders received, the resolution passed awarding the tender as well as the form of tender and agreement of the successful bidder.
The only request for clarification during this process came from C.R.L. Campbell Construction Limited. This did not relate to the nature of the concrete pipe to be used. After the tenders were opened, by letter dated April 22nd, 2003, an invoice was received by the Township in which Burnside invoiced:
the services provided include discussions with contractors, suppliers and Township regarding tenders and proposed construction and related expenses.
It should be noted, however, that this invoice was for professional services ending March 27th, 2003.
On April 11th, 2003, Goldstream Concrete Ltd., the concrete pipe supplier provided a proposal with regard to what it described as a "super heavy duty flat bottom concrete drain tile.”
By correspondence April 24th, 2003 to the Township by fax: Attention Wray Ramsay, a picture of the tile was forwarded and a request for review was made. The same correspondence stated:
that we have contacted Paul Elston (spelling incorrect) from Burnside Engineering on this matter already.
During this period there were discussions between Burnside and South-West Oxford. A call log of Paul Macintyre indicated that as a result of an April 10th, 2003 contact from Wray Ramsay he asked whether they (Burnside) were required to check tenders and make a recommendation and was advised that the answer was no. On a further telephone conversation on April 11th, 2003 between Paul Macintyre of Burnside with Bob Brown of telephone conversation on April 11th, 2003 between Paul Macintyre of Burnside with Bob Brown of Goldstream Concrete, Mr. Macintyre’s note of the conversation is:
this is ok with us but for confirmation, talk to Wray Ramsay @ Township.
Burnside, under the signature of Paul Elston, made a more formal reply to the Township of South-West Oxford on April 23, 2003. In that reply he stated:
However, since we will not be involved in the day to day inspection of the projects, we feel it would be your responsibility to certify the project's completion and ultimately its general conformity with the drawings, specifications etc. (or as may be altered in discussions between our offices)
In the same letter Burnside states:
We confirm that our services will remain available to your Township for consultation and assistance during the construction phases of the project as may be requested by your office.
There then followed a period where work was conducted by Van Bree on the open portion of the drain which is not relevant to this matter, however, discussions appeared to start July 14th, 2003 when Burnside received calls from staff at the Township suggesting Burnside could attend a preconstruction on-site meeting if they were in the area. At this time Burnside reminded Mr. Ramsay’s administrative assistant Margret Weiland that Burnside was not required to inspect this job.
There followed telephone communications which were noted in records at Burnside culminating with Don Weir's call, Drainage Superintendent for Malahide Township inquiring why Burnside was not in attendance at the onsite meeting. Discussions were had with Mr. Weir of Malahide by Burnside. Eventually calls were made to Burnside by Jack Van Ham, the part-owner of the lands where the problem has existed. This lead to a request by email from Wray Ramsay on Thursday July 24th, 2003.
after a discussion with some landowners, review with the clerk, it has been decided that R.J. Burnside and Associates Limited be requested to complete the supervision for the above drain. Any further questions be directed to Wray Ramsay.
INSTALLATION OF THE 900 MILLIMETRE HEAVY DUTY CONCRETE DRAIN TILE, JULY 25, 2003, JULY 28, 2003
The Contractor, Van Bree Drainage & Bulldozing ltd. arrived first and proceeded to install an inlet pipe and set in a catchbasin and excavate to the point where the Barber Greene Trencher, 65A could commence operation. At this time it was quickly established that the tile supply would not fit within the shoe of the Barber Greene Trencher. At the site on behalf of Van Bree were Lloyd Richter who was the Superintendent, Mike Eastman and other labors. Paul Ramsay on behalf of Burnside arrived shortly thereafter. Also attention at the site was Jerry Van Ham who indicated that he came to the site during the two days of construction between 9 and 11 times, Wray Ramsay who attended on July 25th, 2003 and saw the laying of approximately 6 tiles, and Don Weir, Drainage Superintendent for Malahide Township.
Wray Ramsay arrived at approximately 10 o'clock and indicated he was going there to deliver a copy of the test results for the Coldstream testing of the heavy duty flat bottom pipe. Mr. Ramsay testified that he felt it was necessary for Burnside as part of the project and as part of their files has a copy of the notes which indicated that the tile met the ASTM standard C412. Mr. Ramsay's knowledge that Van Bree was using this tile came from Goldstream. During the morning Mr. Ramsay observed the installation of 6 of the new pipe and in testimony he indicated that he noticed an individual in the trench shovelling material under the joint of the tile. The joints were wrapped with filter cloth and the pipe was installed with an excavator.
Don Weir Superintendent for Malahide Township in Elgin County, a neighboring Township which had portions of the drain within it, had heard previously at the preconstruction meeting that flat bottom tile were going to be installed. Mr. Weir had voiced concern that Burnside was not at the preconstruction meeting and contacted Mr. Elston. He told him that Burnside had been let go and were told that they were not going to do anything more. Mr. Weir was also concerned in that on prior section of the drain construction he had heard that there had been an inspection in the form of a drive by inspection carried out by Mr. Ramsay. At this time Mr. Weir contacted the Drainage Coordinator for Ontario whom he asked to intercede between Mr. Ramsay of the Township and Mr. Elson of Burnside.
Mr. Weir also had the opportunity of observing the construction of the flat bottom tile. During his visit to the site he spoke with Mike Eastman, the foreman in charge. He thought the contractor was doing a good job and had no concerns. Mr. Weir indicated that he was impressed with the flat bottom tile as there had been trouble with tiles of the size 900 millimeters (36 inches) collapsing before. His comment was he thought:
we had a new thing that is really going to help the industry.
Mr. Weir only became aware later that Paul Macintyre from Burnside was at the site for inspection. Mr. Weir further indicated that as superintendent he tended to inspect on installations as backup.
Paul Macintyre, a civil engineering technologist, attended on behalf of Burnside and was concerned with regard to the installation of the flat bottom tile supplied by Goldstream. His notes of July 25th, 2003 expressed his concern. He confirmed that Wray Ramsay was onsite having delivered the specifications to him. He provided verbal directions to the contractor which he put in writing later in the day. He indicated that typical inspection would take 1-2 hours onsite. Exhibit 3 Tab 23 represented his site record for July 25th, 2003. This document was later provided to Mr. Elston the consulting engineer and contained a notation that he had read it.
Discussions were had between Mr. Macintyre, Mr. Richter and Mr. Eastman as to how best to construct the drain with the tile and wheel machine that was present on the site. The discussion occurred because, as was stated by Paul Macintyre the, tile that was delivered to the site to be installed had a flat bottom as opposed to a round curvature that every other tile constructed has. Mr. Macintyre first became aware of the actual tile being used for the project upon his arrival on July 25th, 2003. According to the evidence of Paul Macintyre, the discussion was around the strength of the tile and the trench width. In a typical situation he stated the trench width is to be wider than the tile itself in order to allow soil to fall underneath into the haunches of the tile to protect the tile from collapsing. This tile had no haunches as they were all filled with concrete.
The discussion turned to the apparent void that would have been left underneath the tile once the flat bottom tile was placed in the curvature of the bottom of the trench. This was caused by the Barber Greene Trencher which created a rounded bottom. The evidence of Mr. Macintyre and Mr. Richter was that there was, on either side of the curve, approximately 4 - 5 inches of soil forming a ledge. There was a void underneath the tile in between the two ledges on either side of the trench. The ultimate resolution of the issue was to have a laborer in the trench ahead of the placement of tile that would trim a portion of rounding off and throw it into the bottom. There is some disagreement in the evidence between Lloyd Richter and Paul Macintyre as to whether the filling of the void was to occur at joints only, or throughout the bottom. The notes of Mr. Macintyre required that the laborer fill in the invert with soil to make a flat bottom.
Mr. Macintyre confirmed his time at the site was two hours that day with him typically ending his inspection by checking the grade, verifying the section as complete and directing that the tile be buried. Installation of the tile proceeded without incident after these directions were provided to Van Bree. On August 27th, 2003, Paul Macintyre issued a Completion Certificate for the Clear Creek Drain. The Completion Certificate & Progress Payment No. 1 also allowed for a number of extras which had been claimed by Van Bree.
POST INSTALLATION ISSUES
It appears that during the warranty period, notification came from Hamlock Poultry forwarded to the Drainage Superintendent Mr. Ramsay that there was a need to investigate a sinkhole. Van Bree attended and according to the testimony of Mr. Richter, couldn't find too much wrong, but placed at the particular area some filter mat on the tile, covered it up and heard nothing further. This was done during the warranty period. The drainage superintendent was not in attendance for this repair.
According to the evidence of Jerry Van Ham, however, there were numerous washouts and cave-ins at different spots and locations (approximately between 6 and 8). There was attendance by the number of people, at repairs in May 9th, 2007 and November 8th, 2007. According to the Van Ham’s the cave-ins and washouts were continuous to the extent that the Van Ham’s were closing them just to get by. Mr. Van Ham described as his big risk the running of heavy machinery across the tile drain, however, he did not indicate that any machinery had been damaged nor tile broken by such machinery. Mr. Van Ham further confirmed that the abutting landowners, whose lands were served with the same tile, had no problem. Jack Van Ham, one of the owners of Hamlock Poultry threatened to sue the Township if he drain wasn't removed and replaced.
In April of 2007 Jack Van Ham observed settlements or washins over the alignment of the drain tile in his field. On May 9th, 2007, there was an investigation and repair of the settlement over the tile. The tiles themselves, besides being 900 millimeter in diameter were 8 feet long, (2,440 millimeters). The tile that was inspected at the repair site was out of alignment, had wide joints and had water flowing beneath the tile. The structural integrity of the tile remained intact. The repair involved removal of the specific tile, installation of granular materials in the trench adequate to support the pipe and reinstallation of the tile.
Kirwin and Oatman Excavating Ltd. did the work and invoiced the Township $1,739.21. Further investigation occurred in November of 2007. Although at the first meeting the property owners, drainage superintendent, and Goldstream Concrete attended the meeting; there was no representative of Burnside available that day. However, on November 8th, 2007 the property owners, Van Bree, Goldstream and Burnside were all available. Another washin had occurred. There was some dispute between the parties as to whether it was a washin, as occurred in the May of 2007 repair, or whether there was simply settlement.
The issue addressed at this time was whether the matter of the investigation in November was a maintenance issue or a construction issue. The November meeting leads to an appeal before the Agricultural, Food and Rural Affairs Tribunal. The issue of the appeal related to a request for an extension of time to initiate an appeal under Section 64 of the Drainage Act as to quality of construction and the desire of the owners for a warranty on the drain or its replacement. The Notice of Appeal to the Ontario Drainage Tribunal properly known as the Agriculture, Food and Rural Affairs Appeal Tribunal, also requested an extension of the time otherwise limited for the Application under s. 100 of the Drainage Act. The decision regarding the extension of time was dated the 1st day of April, 2008; it confirmed that eight (8) requests by Appellants for an extension of time to appeal to the Tribunal had been forwarded to the Tribunal between the periods of November 27th and December 3rd, 2007. The decision of the Tribunal authorized an extension of time to initiate the appeal under s. 64 of the Drainage Act on the Clear Creek Drain. The Township acting on behalf of the Appellants, which included itself through its road superintendent, then attempted to arrange dates with the Tribunal for a hearing. There then followed a series of withdrawals of appeals by the eight Appellants, most of which were dated in September and received by the Township on October 2nd, 2008 with the last withdrawal being received on October 6th, 2008. Each withdrawal indicated to the Township that the parties wished to join in the Township's action in the Court of the Drainage Referee.
The experts and the witnesses that supplied evidence in this trial have narrowed the issue to two distinct propositions. One is found in the Memo of Paul Macintyre on November 8th, 2007 which states as follows:
It is our opinion as a result of this investigation, (notwithstanding that it conforms with our previous position) that the void under the tile is not nor has it been a problem. This is a maintenance issue not a construction issue and should have been dealt with accordingly from the outset.
This to a certain extent is the opinion of the expert for Van Bree, Ray Dobbin. The other proposition, which is the Municipality's position, as set out in the report of its expert, Ed Dries is that the construction methodology was seriously flawed and as such the problem cannot be solved with spot repairs. Mr. Dries in his report states;
It is practical to assume that the spot repairs have corrected the problem on this tile drain installation. It is my opinion that the settlement of the tile will continue as will the need to do spot repairs to the tile. .. It is my opinion the only practical solution is to completely remove and reconstruct the 900 millimeters diameter tile from station 0+321 to station 1+154."
He goes on to state:
the cost of this reconstruction should not be the responsibility of the Township or the property owners affected by this drainage works.
FORM OF TENDER- TERMS OF CONTRACT
It was the general consensus of the expert witnesses for the Plaintiff and the Defendants that, although no Tender Packages were retained by the Township or Van Bree, the Report of R.J. Burnside & Associates Limited Cold Creek Drain- 2002 contained the essential provisions of the contract. To this should be added the Form of Tender, and the advice from Goldstream Concrete Ltd. dated April 11th, 2003 addressed to contractors and engineer. This third document contained a description of the heavy duty flat bottom concrete drain tile and its price found in the Form of Tender completed by Van Bree.
It should be noted on the final page of the Form of Tender that the make and model of the tiling machine, which was communicated to the Municipality was a TA65 Barber Greene. The final wording of the contact states:
This proposal of tender form, when signed and offered by the contractor, shall constitute a formal and binding contract when accepted and signed on behalf of the Township of South-West Oxford.
The acceptance occurred on April 15th. To the Form of Tender signed by Van Bree on April 14th, 2003. The lead in to the Form of Tender states as follows:
The undersigned having carefully examined the drawings, specifications and location of the work and fully understanding all conditions, hereby offer to enter into a contract to supply labor, equipment and materials, and construct this work for the Township of South-West Oxford, complete and read for use in accordance with the specifications for the following prices:''
The Report on the Clear Creek Drain- 2002 provided in s.9.0 Recommended Design and Appurtenances specifications. This section included the subject matter of this hearing the 833 meters of 900 millimeters dia heavy duty concrete drain tile including wrapping all joints. S. 12.0 refer to the Plan, Profiles and Details which were included in the Report. In s.16 of the Report, the estimate for the installation of the particular works which are at issue was estimated at $78,500.00 yet the bid price was $61, 520.00 in the tender. The appendices of the Clear Creek Drain - 2002 contained the balance of the contract. Appendix A Special Provisions dictated the work to be done on the 833 meters of drain. It also provided the requirement that the concrete tile be ASTM C412 heavy duty.
This appendix also acknowledged that a contingency could exist for installation of tile by backhoe in areas of extreme soil instability "where directed by the engineer."
Appendix B General Conditions in paragraph 2 stated:
Engineer means the Project Engineer of R.J. Burnside & Associates Limited who is authorized to oversee the construction process."
In paragraph 3 of the General Conditions, Inspector was defined as:
if any means the representative of R.J. Burnside & Associates Limited who is authorized to inspect and oversee the construction process."
The Drainage Superintendent was defined in part as:
The person or persons appointed by the Municipality to assist in the construction of the drainage works.
Appendix D of the Report in paragraph 2 required that the contractor supply all materials, while paragraph 3 of Appendix D allowed the contractor to reject the heavy duty tile if not for its quality when received by the contractor at the site on delivery. Appendix E provided Instructions to Bidders. Paragraph 2 is of note:
Investigations in regard to plans, profiles, specifications, the location and extent of work should be made by the bidders themselves before tendering, any doubt as to the exact meaning of the relevant documents or their intentions must be removed before the signing of the Contract; thereafter. the Contractor shall be bound by the decisions of the Engineer on all points."
Appendix E, paragraph 5 contains the one year warranty and describes the responsibilities of the contractor as to workmanship.
FAULTY MATERIAL OR WORKMANSHIP shall be the responsibility of the Contractor at his own expense for a period of one year from the date of final acceptance of the work and he shall remedy any defect and pay for any damage therefrom which may appear within such period and neither the final certificate nor payments thereunder shall relieve him from such responsibility under or by virtue of the signed Contract.
Finally, Appendix E in paragraph 8 requires final inspection to be made within two weeks after notice has been received from the Contractor that the work has been completed. It is important to note the phrasing in this section:
if deficiencies are found, which should have been known to the Contractor as not complying with specifications, the costs and expenses incidental to such inspection, shall due to his negligence, become the liability of the Contractor and may be deducted from the contract price."
Neither Appendix F nor Appendix G is relevant to these issues as they relate to allowances and assessment.
It is acknowledged by all that the heavy duty flat bottom concrete pipe was unique to this project. The expert, E.P. Dries for the Township in his report did not have in his possession when he drafted his report what I would describe as field notes made by Paul Macintyre on July 25, 2003. As a result, on page 12 of Mr. Dries' report he states:
there is no evidence that Macintyre issued any onsite instructions to Van Bree." further stating on the same page "there is no indication provided to the Township that the construction methodology was ever discussed between Van Bree and Maclntyre.”
In conclusion Mr. Dries states:
the construction methodology applied by Van Bree to the installation of the 900 millimeters diameter flat bottom tile was seriously flawed.
There was evidence given in this trial that Paul Macintyre required that the contractor to have its laborer filling in the invert with soil to make a flat bottom. It was the evidence of Lloyd Richter that this requirement was to occur only at the joints. Mr. Richter in his testimony was somewhat vague as to whether it was throughout the bottom of the area and there was obvious concern that a laborer would be unable to keep up with the trencher and complete filling of the invert for each of the tile as the trencher moved along its path.
The Issue:
- Found in Appendix E, Instruction to Bidders, are the investigations that the bidders must undertake. According to that paragraph, after the tendering process, the contractor is bound by the decisions of the engineers on all points. The question then becomes, is the type of pipe supplied by Goldstream Concrete a change of specification? In the expert report of Ed Dries he submitted the opinion that the pipe met specifications. The issue then became whether Goldstream, in providing a non- standard pipe that met the strength requirements but had a different cross section properly communicated this fact to Burnside, as Burnside at the time was not in charge of the process.
It is instructive to note that Exhibit 5 the ASTM designation for C412 contains the advice which says in part:
however, experience has shown that successful performance of the product depends on the proper section of class of drain tile, type of bedding and backfill and care that the installation conforms to the construction specifications.
This specification goes on further to state the tile acceptability is to be determined by:
measurements and inspections to ascertain whether the tile conform to the requirements regarding dimensions, shape and freedom from visible defects.
This would seem to indicate that shape and bedding were important aspects of the choosing of product. Limiting this, however, was that tile supplied by Goldstream was the only tile readily available for bidding this contract.
In the Examination for Discovery of Wray Ramsay October 22, 2009 Mr. Ramsay confirmed that a letter/fax dated April 11th was sent to the contractors and engineer with prices for the Clear Creek Drain. He further indicated that there were no competitors on the market to Goldstream and as such he assumed that the pipe that was going to go into the trench was a flat bottom pipe. While the expert evidence of Mr. Dries was that his opinion was founded on the assumption that Mr.Van Bree was responsible for selecting the Goldstream tile, however, the transcript evidence on Examination for Discovery makes it evident that Ramsay knew that this was the only tile available. I view this as a change in specifications.
In his April 7th letter to Burnside, Mr. Ramsay indicated while removing Burnside from supervision of construction the following:
As per the specifications, no adjustments in tile size or gradients or any instruction that changes the proposed work considerably will be made without Engineers approval."
No attempt was made by Mr. Ramsay to obtain any Engineer's approval other than to drop off the specifications for the tile supplied by Goldstream Concrete the day construction started. Nor did Mr. Ramsay during the bidding process attempt to change Appendix B of the tender package which appointed the Engineer as both inspector and Engineer authorizing it to inspect and oversee the construction process. The delivery of these specifications at such a late date, the lack of consultation on what could be perceived as change in specifications put Burnside at a distinct disadvantage.
However, since the General Conditions in Appendix B still left them with the position of the Engineer and Inspector, clarification on the contract should have occurred sooner after the letter of April 23, 2003 to the Township by Burnside. In this letter Burnside proposed that it would be the Township's Drainage Superintendent's responsibility:
to certify the project's completion and ultimately, its general conformity with the drawings, specifications, etc. or as may be altered in discussions between our offices.
Yet it offered to undertake a final inspection.
What did occur on July 25th is that there was a partial change of specifications with regard to shape for the ASTM C412 concrete drain tile.
In cross-examination of Mr. Dries, in response to the question that knowing the flat bottom tile was going to be used before the close of tenders, that Mr. Ramsay could have requested the issue of an addendum or change to the specifications for the bidders; Mr. Dries answered:
I think more properly Burnside would have done that as author of the report and they prepared the tender document."
In further questioning as to who could have issued the change order, Mr. Dries on the assumption that Mr. Ramsay knew with absolute certainty that the contractor was going to use a square bottom pipe and to the question should he have issued an addendum, the response of the Township's expert was:
I am not aware the drainage superintendent would have the authority to issue an addendum against a report prepared by Burnside."
Further questioned he indicated:
he could have called the engineer, certainly he could have raised it with the engineer yes.
This did not occur until the actual day of construction.
FINDINGS
After a review of the contract, I am satisfied that in a strictly contractual sense, Van Bree Drainage & Bulldozing Ltd was bound by the decisions of the Engineer R.J. Burnside & Associates Limited. Burnside had discretion in areas of soil instability. Notes of the Engineering Technologist Paul Macintyre dated July 25th indicated that there was sand running in the sides of the excavation. The direction, however, of the Engineer was to continue throwing soil in the void between the tile and the trench. An independent third party, Don Weir thought the contractor was doing a good job and had no concerns.
I’m satisfied that the Township through the actions of Wray Ramsay, mandated the use of the flat bottom tile. As found previously, the use of the flat bottom tile represented a change in specifications. No advance contact was made with the Engineer to specifically address the tile by the Drainage Superintendent. Although there were conversations and attempts to bring Burnside into the tendering process through forwarding to Burnside a summary of the tenders received, Burnside kept its distance from the process. It should have been obvious that from the specifications in the Report, requiring a wheel trencher, that an oval/rounded bottom would occur. With the supply of the tender by Van Bree describing the trencher, the Drainage Superintendent should have addressed the issue.
At time of construction when the Drainage Superintendent hastily delivered the specifications for the heavy duty ASTM-C412 concrete drain tile, however, by continuing with the project, the responsibility, as contained in the original tender for inspection and engineering, returned to Burnside. Burnside had the discretion to stop the process at this time but chose to proceed in the fashion described by Mr. Macintyre in his testimony and in his field notes. The contractor is responsible for the proper performance of this work only to the extent that the design and standards permit performance.
Where in other contracts the contractor might be responsible for the construction, means, methods, techniques, and procedures, this contractor did not have a like discretion and therefore no commensurate obligation. Although there is the assumption that a contractor should be completing the work in a good and workmanlike manner, future tender documents should suggest guidance from the Drainage Guide for Ontario and even, perhaps, the design manual published by the Ontario Concrete Pipe Association, if those guidelines were to be incorporated into the tender documents in establishing a guide to what is good and workmanlike construction.
RESPONSIBILITY FOR CHANGE IN SPECIFICATIONS
I find that in the particular situation before the Referee that the responsibility for the change in specifications lies entirely with the Township of South-West Oxford but the failure to implement those changes in specifications onsite, albeit on short notice, lies with Burnside.
As such both parties bear equal responsibility for failure of this particular portion of the Cold Creek Dain. The cost of remedying this failure shall be borne equally between the Plaintiff and the Corporation of the Township of South-West Oxford and the Defendant R.J. Burnside & Associates Ltd.
It is important to note that given the structure of the Drainage Act, the change in specifications must be approved by the Corporation of the Township of South-West Oxford through by-law. In arriving at this position, I refer to the terms of the Drainage
Act but also the Decision of the Agricultural Food and Rural Affairs Appeal Tribunal in its decision on the appeal to the Tribunal by the Township of Tehkummah in the matter of the quality of construction of a drainage works under the Engineer's Report on the Heirons Drain in the Township. In that Decision dated November 19th, 2007, Rod Stork, Chair, made the following observations with which I concur:
The Act does not grant the drainage engineer jurisdiction or authority to unilaterally change the report once the municipality approves it. Similarly, the Act does not grant the engineer jurisdiction or authority to approve changes to design during construction. If the engineer has any such powers, they must flow from somewhere other than the Act.
The Chair of the Tribunal goes on to say:
In our view any jurisdiction or authority in either the engineer or the contractor over design or construction must flow from either the municipality's by-law or the contract documents, which would include the tender documents. We note that neither By-Law 2006-06 nor the contract documents grant such jurisdiction or
Authority.
Similarly in this matter, no jurisdiction or authorities to amend the specifications were granted by the contract documents which the Tribunal states include the tender documents. Mr. Dries in his testimony in this matter recognizes that the tender documents are separate from the Report to which I concur. What happened in this matter, however, was there was as I have found a change in the specifications and there was no change in the tender documents which I view as being outside of the Report and easily accomplished by change that portion of the documentation rather than the report itself. Iwould appear that current practices to authorize the award of tenders via resolution.
While included in the Report of Burnside, the tender documents are viewed as somewhat separate from the actual Report and subject to change via resolution rather than by By-law provided there is no change to the specification for the work.
REMEDY
As stated previously in this decision, the parties to this action have put forth two opposing positions:
(a). The void under the tile is not, nor has it been a problem; this is a maintenance issue, or
(b) This is a construction issue, the construction methodology was seriously flawed and the problem cannot be solved with repairs but only with reconstruction.
I am satisfied that reconstruction is not necessary.
It is my understanding one of the main reasons the heavy duty concrete pipe was created by Coldstream Concrete Limited was the tendency of the larger pipe (900 millimeters 36 inches) to collapse. This has been confirmed by Don Weir and Wray Ramsay in testimony.
John Kuntze P.Eng. of K. Smart Associates Limited the expert called by Burnside in his report states:
in my experience backfill settlement in the trench for insulation of concrete drain tile in agricultural lands falling installation is common since backfilling is not done with any significant amount of compaction on the backfill.. .
He quotes the Drainage Guide for Ontario which states:
Fill all trenches to a level sufficiently above the surface of the ground to allow for settlement.
In the case of the Hamlock Poultry Limited construction the fill was moved off the surface of the concrete pipe and placed elsewhere at the request of the Van Hams leaving little allowance for settlement. Mr. Kuntze" goes on to state:
Unfortunately backfill does not settle uniformly and settlement issues below existing ground elevation will occur.
In 2004 there was warranty work and in May of 2007 further work was required as a result of a washin.
However, there is a difference of opinion whether there was a washin that necessitated the November 8th investigation. The observation that Paul MacIntyre made in Exhibit 3 Tabs 79 and 80 in relation to the November 8th investigation indicates that tile joints were tight or within certain acceptable tolerances that the tile wrap was in place. There was no evidence that the tile shifted and the ledge on either side of the void area was still in place. There was a void and the water was stagnant or had very little movement. Finally he maintained that the void was not and is not running water.
It is indeed unfortunate that the proposal to put foam under a number of joints 100 meters apart was not acceptable to the parties as described in the testimony of Mr. Richter.
I accept the evidence of Mr. Ray Dobbin P.Eng. of R. Dobbin Engineering Inc. that one of the contributing factors to the suck holes described by Jerry Van Ham were as follows:
There are other factors that may contribute to suck holes in the existing 900 mm dia. drainage works. Suck holes are generally created when a vacuum is created in the tile system and the backfill is sucked in through joints. Eventually there is a wash in at the ground surface. The suction is evidenced by the fact that the filter cloth is sucked into the joint. In November of 2007 it was noted that the suck hole in the tile was excavated and the tile was replaced with a filter cloth that suck holed into the joint.
The vacuum in the tile would be created because the tile was full either because the tile was overloaded by a heavy rainfall of greater than 25mm per 24 hours or because there was not sufficient outlet for the tile drain downstream.
I return to the opinion of John Kuntze:
I agree that the current condition of the Clear Creek Drain could be treated as a maintenance issue which under s. 74 of the Drainage Act, which under s. 74 of the Drainage Act is the responsibility of the Township of South-West Oxford. Ifind no basis in evidence that provides the current condition of Clear Creek Drain as any way the responsibility of R.J. Burnside & Associates Limited.
I cannot agree with this conclusion; except that indeed I find that the matter is a matter of maintenance.
I draw from the testimony of all the parties in the area that breakage of larger tiles has been a problem. The attempt by Goldstream Concrete Limited to create a tile that would solve the problem was applauded by Messrs. Ramsay and Weir. The fact that no other suitable tile has been created was beyond the scope of this trial. However, I note that there has been no collapse of tile from heavy equipment although various questions were placed to the Van Hams regarding this. Ialso note that some self-help has occurred by the Van Hams in clearing up suck holes or sink holes. If this is an on-going maintenance problem they should request maintenance be continued under the Drainage Act in the normal course.
There is no evidence placed before the Referee as to the reason behind the abandonment of the s.64 quality of construction appeal to the Tribunal. As such I will not delve into that issue or the extension in the time limitation given by the Tribunal, nor has limitations been seriously argued with regard to s. 111 of the Drainage Act. The limitations which the defendants tried to place on the Township evaporated after the supply of Exhibit 8 by Mr. Courey.
As such I will make no ruling on limitations.
It is my position that unique situations require unique solutions. In this particular trial an entirely new (for Drainage Act purposes) tile has been introduced and such unique situations require special response in connection with maintenance.
Ms. Handler, Solicitor for the Engineer has, raised the issue with regard to cost benefit. While I can concur that the drain works and does not require reconstruction it would appear, because of the unique situation in which we find ourselves, that ongoing maintenance may be an issue. I accept the submissions of counsel for Burnside using McKellar Structured Settlements 2003 Calculator that the present value of the level of maintenance for the next 65 years is $8,092.00. In addition, on the way to a settlement which ultimately did not occur, there was discussion regarding the installation of foam under the tiles to prevent water from moving under the tile. Using caution, I would couple both of these maintenance issues and order that the Township of South-West Oxford and R.J. Burnside and Associates Limited each contribute the sum of $7,500.00 to be held by the Corporation of the Township of South-West Oxford in a reserve and/or trust fund for future maintenance or repairs for the Cold Creek - 2002 Drain. These funds are to be more specifically allocated to repairs necessitated in the area of construction of the 900 millimeters concrete closed drain.
Given that in this matter, as I find, is based in part on the fault of the Township, the $7,500.00 which I have ordered the Township contribute shall be in accordance with Section 118 (2) of the Act borne by the Township and payable by it out of the general funds of the Township.
COSTS
I have maintained during my time as Referee that costs continue to be a concern and as such will be granted only on a partially indemnity basis.
I will receive separately, written submissions with regard to the costs in this matter. I note that Mr. Daly, Counsel for Van Bree Drainage & Bulldozing ltd. indicated that the presence of Ray Dobbin of R. Dobbin Engineer Inc. through much of this trial was for own edification having not been involved in such trials before. Any costs for R. Dobbin Engineering Inc. will be limited to the actual time spent providing testimony and his written opinion.
In the interim I leave the matter of costs to be discussed between Counsels and hopefully they will be able to come up with a proposal for the Referee acceptable to all, failing which I would ask that you provide your submissions regarding costs in this matter by November 15th, 2013.
Dated at Strathroy, Ontario this 3rd day of October, 2013.
ROBERT G. WATERS
ONTARIO DRAINAGE REFEREE