Aird & Berlis Successfully Defends Against All Claims in Consolidated Adjudication

Aird & Berlis successfully represented a municipality against consolidated construction adjudication claims in the context of a sewer and watermain replacement contract.

Two adjudication claims were commenced against Aird & Berlis’ municipal client in April 2024, which were consolidated into one adjudication in May 2024. The first claim was with respect to additional tipping and haulage costs, resulting from an alleged delay in the municipality awarding the contract, which pushed earth excavation and disposal work into winter months, when the contractor’s proposed dump site was closed. The second claim was with respect to alleged additional testing and soil sampling costs incurred in order to comply with soil management regulations. The disputed claims were brought to adjudication for an interim binding decision in accordance with the Construction Act, R.S.O., 1990, c. C.30.

With respect to the first issue, the contract stipulated an anticipated start date in the summer of 2022 and a substantial performance date in the summer of the following year. Due to several factors, whose responsibility was disputed, the contract was not awarded until late fall 2022.

The contractor argued that it incurred unexpected additional costs due to what it claimed as the municipality’s delay in awarding the contract. Had the project commenced as contemplated by the tender documents, the contractor alleged it would have completed the excavation and disposal prior to the winter.

Aird & Berlis successfully argued that the municipality did not cause any delay to the commencement of the project contrary to the contract and, in any event, the contractor was bound to its fixed unit price bid since the contract was awarded within the bid irrevocability period.

With respect to the second issue, the contractor provided limited documentation supporting its claim that it was entitled to costs associated with additional soil sampling and testing. Aird & Berlis argued that the contractor was contractually obligated to meet the more stringent requirements of the new soil management regulations. The documentation provided by the contractor did not clearly demonstrate that it provided soil sampling and testing beyond what was contractually required, nor that such work resulted from deficiencies in the contract.

Following written submissions and an oral hearing, the adjudicator agreed with the municipality’s submissions that the contractor had no valid argument establishing entitlement to its claims. The adjudication was dismissed in favour of the municipality.

Aird & Berlis represented the respondent municipality with a team including Vedran Simkic, Danielle Muise and Jennifer Bilas (Construction).