ONTARIO SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 47804
DATE: 2012-01-25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
BRE-EX LIMITED Plaintiff – and – THE CORPORATION OF THE CITY OF HAMILTON Defendant
James A. LeBer and Marcia Oliver, for the Plaintiff
Paul F. Ryan and Justyna Hidalgo, for the Defendant
HEARD: April 12, 13, 14, 18, 19, 20, 2011 and October 11, 12, 13, 14, 17, 18, 19, 20, 2011
RADY J.
Introduction
[ 1 ] The plaintiff, a London based excavation company, seeks damages from the defendant City arising from what it submits was the City’s delay in authorizing it to proceed with work at the Glanbrook Landfill site after it had been awarded a contract. It seeks damages in excess of $1 million.
[ 2 ] The City operated the landfill site and it began to experience problems with leachate retention. [1] The City wanted to eliminate the problem through the installation of a drain system forcemain and a pumping station. The work posed a particular challenge because it involved digging in an active landfill site. Debris and odour control as well as control of vector [2] and vermin were important considerations.
Facts
[ 3 ] I propose to deal with uncontroversial matters first. In the fall of 2001, the City issued a call for tenders for the construction of a new leachate collection system at the Glanbrook Landfill under contract no. TOE-01-44(M). The closing date for receipt of tenders was November 6, 2001.
[ 4 ] The call for tenders followed a long period of negotiation between the City and the landfill operator, Canadian Waste Management, on the terms by which CWM would undertake the work required. The parties were unable to agree and a decision was made to go to tender. Prior to making the tender package available, the City required potential bidders to answer a prequalification questionnaire. The project was described as involving the following work:
• excavation of trenches through up to 16 m of landfilled municipal waste;
• installation of a leachate collection system within the excavated trenches, consisting of a piping system (approximately 3,700 m length) and manholes;
• installation of a leachate pumping station and forcemain (approximately 800 m in length), connected to the new leachate collection system;
• placement of granular, waste, and compacted clay backfill under controlled conditions;
• ensuring the stability of the open trenches during the work, and dewatering of leachate from the trenches;
• restoration of the landfill cover system in the excavated areas;
• preparing and implementing a site-specific worker health and safety program;
[ 5 ] The questionnaire also stated the following:
The construction of the system is governed by a Provisional Certificate of Approval for the Glanbrook Landfill, issued by the Ontario Ministry of the Environment. The City of Hamilton intends to tender this work in the fall of 2001. The City will require that work commence immediately following award of the Contract, and will require the work to be completed by approximately the end of July, 2002 . [Emphasis added.]
[ 6 ] The plaintiff completed the prequalification questionnaire and in due course obtained the tender package.
[ 7 ] The tender package provided that the following documents formed part of the contract documents:
Addenda numbered ____________ to _____________
List of Contract Documents
Schedule of Standard Drawings, Specifications and General Conditions
Tender Notice
Fair Wage Notice
Contract for Works (RHW Form 003)
Performance Bond and Labour and Material Payment Bond
Form of Tender (RHW Form 002) Including Schedule of Quantities and Prices
*Supplemental General Conditions
Special Provisions – Sections 1 to 8 inclusive
Method of Payment
Special Provisions Respecting Contingency Allowance
Special Provisions For Liquidated Damages and Time For Completion
Special Provisions Respecting Federal & Ontario Real Sales Tax
*The Supplemental General Conditions are not bound in this document but does [sic] form part of this contract. This document is available in the RHW Specification Manual.
[ 8 ] Other notable provisions include the following language:
. 05 It is understood and agreed that a binding contract exists upon acceptance of this Tender by City Council and that subsequent execution of the Contract Documents is a formality and not a condition precedent to the existence of a binding Contract. The documents listed in the List of Contract Documents for this contract shall constitute the Contract . [Emphasis added.]
.05.01 Time shall be of the essence of this Contract.
1.3.1 Together with his bid, the Contractor shall submit the following:
a) Proposed Investigation Procedures
The Contractor shall provide the following details of the investigations to confirm existing conditions and permit the confirmation of the design of the work:
a) the equipment to be used for excavating the test pits;
b) the extent and location of topographic surveying to be undertaken;
c) the health and safety measures that will be undertaken to protect the Contractor’s workers during the course of the investigations; and
d) the approximate schedule and sequencing for the investigations.
The plan shall be reviewed by the Owner, the Engineer, and the Site Operator (Canadian Waste Services Inc.). Under no circumstances shall any of the investigations proceed prior to acceptance of the methodology by the above parties . [Emphasis added.]
b) Proposed Construction Procedures and Sequence
The Contractor shall propose to the Engineer a construction methodology for the construction of the Work which specifically addresses the following:
a) the sequence of all work;
b) excavation of all trenches, including the method for maintaining the stability of open trenches;
c) installation of the piping systems including the method of joining pipe sections and the timing of installation of piping relative to the backfilling work;
d) method for placing granular in the finger drains at junctions to the perimeter or lateral trenches;
e) installation of the manhole structures;
f) connection of pipes to new manholes;
g) connection of the new system to the existing leachate collection system;
h) installation of the pumping station and forcemain;
i) the control of litter, odour, noise and dust during the work;
j) the sequence for the disposal of excess waste from the trench excavations;
k) the method for adequately dewatering the trenches and disposal of the leachate to the existing leachate collection system on-site; and
l) the method to prevent the release of leachate beyond the waste cell boundaries.
The plan shall be reviewed by the Owner, the Engineer, and the Site Operator (Canadian Waste Services Inc.). Under no circumstances shall any of the work proceed prior to acceptance of the methodology by the above parties . [Emphasis added.]
1.28 The Contractor shall sufficiently dewater the working area to the satisfaction of the Engineer during the course of the work.
3.1.2 Fifteen days prior to commencing any excavation work the Contractor shall propose the measures for preventing sediments and fine grained materials from entering the trenches and the sections of trench (perimeter collectors, lateral collectors, and finger drains) completed with piping and granular backfill. Excavation work shall not proceed prior to the review and acceptance of the methodology by the Engineer.
[... continued verbatim ...]
“ Justice H. A. Rady ”
Justice H.A. Rady
Released: January 25, 2012
DATE: 2012-01-25
ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: BRE-EX LIMITED Plaintiff – and – THE CORPORATION OF THE CITY OF HAMILTON Defendant REASONS FOR JUDGMENT Rady J.
Released: January 25, 2012
[1] In plain English, the site was leaking contaminated water.
[2] Seagulls and other scavenging birds.
[3] Immanuel Goldsmith and Thomas G. Heintzman, Goldsmith on Canadian Building Contracts, 4 th ed. (Toronto: Carswell, 1988)