Judge rejects suit over sewage plant

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This article was published 24/12/2015 (3888 days ago), so information in it may no longer be current.

CITY hall’s attempt to hold an engineering firm and a general contractor responsible for serious design and construction flaws at the West End Water Pollution Control Centre was recently rejected by a court when the city failed to show what work the two firms were responsible for carrying out.

Justice Lori Spivak, in a Nov. 26 ruling, said the city’s case against AECOM and Bird Construction could not proceed because the city, in its statement of claim, had not “provided sufficient evidence to establish a prima facie case that AECOM and Bird breached their contractual duties to the city and/or were negligent, which caused the city damage.”

City hall initiated the lawsuit in July 2013 against AECOM, Bird Construction and seven sub-contractors after structural and design problems were discovered in part of the $47-million upgrade project at the sprawling sewage-treatment plant at Wilkes Avenue and the Perimeter Highway.

AECOM and Bird were awarded the contracts for the design and construction of two primary sludge fermenters, part of the biological nutrient removal upgrade project, which was carried out from March 2007 to July 2008.

The project was the subject of controversy even before construction began. The budget ballooned to $47 million from $26 million. A 2007 confidential report by the water and waste department blamed $12 million of the cost increase partly on “design errors, incomplete design and design clarification” that forced engineers to redraw plans for a heating and ventilation system and a chemical-addition system.

The cost overruns prompted city council to sign the controversial 30-year consulting deal with Veolia Canada to provide advice to the water and waste department on a series of sewage upgrades and the operation and maintenance of the new facilities.

The court document states city staff discovered in July 2012 that one of the fermenters showed signs of corrosion — the top layer of protective coating was peeling around the top part of the tank, the concrete top of the floor was showing signs of erosion and there were signs of rust on the metal components and beams of one of the fermenter facilities.

The city was concerned similar damage had occurred at the second fermenter but that wasn’t included as part of its legal case.

The city’s assessment was supported in September 2012 by AECOM, which assessed the facility.

In a November 2012 report to the water and waste department, AECOM submitted a rehabilitation plan that detailed the damage to the one fermenter and proposed a repair plan, “which would involve disassembly and a shutdown period,” the court documents state.

While the city submitted AECOM’s November report and referenced the contractual terms as part of it statement of claim, Spivak said the city failed to include actual contracts with AECOM and Bird Construction and failed to show the contractual obligations of the two firms; how the contracts were breached; the content of the duty of care owed by AECOM and Bird Construction; and whether the defects in the fermenter were caused by the breach of contract or breach of duty of care of AECOM and Bird.

Spivak said the city had little chance of proving its case against AECOM and Bird Construction.

She wouldn’t allow the action against the firms to proceed.

The city had already conceded it couldn’t prove its case for damages against the sub-contractors, as it admitted it didn’t know what work the sub-contractors were hired to do.

“There is no evidence as to what AECOM designed or specified and whether or not this was adhered to by those who worked on the project,” Spivak wrote in her nine-page ruling.

“There is no identification of a flaw with the design or specifications, or substandard workmanship. There is no attribution of fault or responsibility to either AECOM, Bird or any of the subcontractors.

“Without expert evidence on these technical and complex matters, there is an insufficient evidentiary foundation to assess these issues.”

 

aldo.santin@freepress.mb.ca