The City of Toronto says design errors caused work on the Gardiner Expressway to be delayed by more than eight months in 2021. In a recently filed lawsuit, it’s now seeking tens of millions of dollars from the multi-national consulting firm it alleges made the mistakes.
The city’s general government committee will discuss the ongoing litigation Monday, which is related to rehabilitation work done to a stretch of the highway from Jarvis Street to Cherry Street. Though what they’re discussing — listed simply as “instructions for staff” in the agenda — is confidential until council votes to make it public.
However, a statement of claim filed by the city in February lays out several examples of fixes that needed to be made after the alleged errors by WSP Canada Inc. were discovered. Those changes led to the city paying its contractor for more costly accelerated work, in an attempt to mitigate WSP’s alleged design errors, the document says.
The city is looking for at least $36 million from the firm through the lawsuit filed at Ontario’s Superior Court of Justice.
The claims in the lawsuit have not been tested in court. WSP is an engineering, advisory and science-based consulting firm founded in Quebec that now has offices around the world.
The firm did not respond to a request for comment on the lawsuit. A notice to defend the suit has been filed on the company’s behalf by a Toronto-based construction lawyer, who did not respond to a request for comment.
“The city has suffered significant additional costs caused by WSP’s design errors,” reads the statement of claim filed on Feb. 28. “Despite requests from the city, WSP has failed to or refused to compensate the city.”
Because of WSP’s alleged design errors, the suit says Toronto had to make payments to its contractor that it otherwise wouldn’t have. Costs incurred both to resolve the alleged errors and reduce the delay, the city’s statement of claim says.
“[The statement of claim] presents only the City of Toronto’s perspective, but the volume and the severity of those alleged design [issues] … they are concerning,” said Lamya Amleh, a professor of civil engineering at Toronto Metropolitan University who was not involved in the project.
Amleh reviewed the design deficiencies described in the statement of claim for CBC Toronto. She says the city is accusing WSP of “conflicting drawings and structural design oversights.”
She said it’s important to remember WSP’s response isn’t yet public, and there may be information that changes the picture.
Adjusting designs on a huge infrastructure project is normal, she said, but what the city is alleging would have been more than that.
“That level of disruption isn’t typical,” she said.
The lawsuit adds another chapter to the story of tension between Toronto residents, GTA drivers and construction on the aging highway that rumbles next to Lake Ontario. In 2020, CBC Toronto reported that many residents were losing sleep due to noisy overnight rehabilitation work on the highway.
In the lawsuit’s court documents, the city says it had to increase “nighttime working windows” with “prolonged day and night shifts” to accelerate the work.
In one instance, the city alleges WSP’s design had to be revised because it “failed to account for stormwater management.”
An oversight that, if true, Amleh said would be “extremely problematic” especially considering the heavy rain the city will likely continue to experience due to the impacts of climate change.
More construction is coming to the Gardiner Expressway. Here’s what you need to know
That alleged mistake is one Tamer El-Diraby, a civil engineering professor at the University of Toronto, said he wouldn’t expect a global firm like WSP to make.
But like Almeh, he said it’s important to remember the narrative of the issues so far has come only from the city.
“You need to see WSP’s point of view,” he said.
“I’m sure there is more documentation behind this,” El-Diraby said. “It will take months if not years to go through this by lawyers and the judge.”
El-Diraby said he was surprised to learn of the lawsuit.
Usually, he said, project owners and the consultants or contractors would find alternative ways to resolve a dispute. That could mean bringing in another consultant or an independent contractor.
“In rare cases, they go to law,” he said.
If the dispute was over a couple million dollars, the city may not have chosen this path, he said.
But the city says it spent $33.2 million in increased payments to the contractor due to design issues, without factoring in taxes. That sum includes about $20 million to accelerate the completion of the project and about $10 million in seasonal expenses brought on by winter work.
Plus, the city estimates it lost about $3 million in extra costs so city staff could oversee the work, payments to external consultants and lawyers, as well as the general loss to the city of having the Gardiner partially closed longer than expected.
While the construction detailed in the lawsuit has been completed, a new batch of rehabilitation work is coming to the Gardiner next week, leading to a year-long lane closure on its western end.
