On Monday, May 17th the Ontario Superior Court of Justice ruled against provincial agencies Infrastructure Ontario (IO) and Metrolinx in their claim that the COVID-19 pandemic did not constitute an emergency under the contract for a $5.5BN Eglinton Crosstown LRT transit project. The public owners argued that the contractor was responsible for any related schedule delays, additional costs, or penalties.

The judge was particularly forceful in his condemnation of what he considered to be an effort by the province to reward contractors to "...cut corners and imperil public health and safety."

Last fall, Crosslinx Transit Solutions took IO/Metrolinx to court in an effort to declare that the pandemic was an emergency per the terms of their contract for the Eglinton Crosstown LRT.

Click HERE to read the October 9, 2020 Link2Build story in which Crosslinx Transit Solutions is quoted as saying they took the decision to file reluctantly only "after repeated efforts to work collaboratively with Metrolinx and IO failed."

Justice Markus Koehnen found that COVID-19 does constitute an emergency under the agreement, opening the door for financial relief including compensation for cost increases and setting a later completion date.

This ruling is seen by industry as an important precedent that could have significant repercussions across the country, detering owners who may be seeking to place all responsibility for COVID-19 impacts on the contractors and sureties.

A spokesperson for the company commented to the Toronto Star that their diligence in protecting their workforce and community added up to additional costs and delays.

Crosslinx is a consortium of Aecon, EllisDon, SNC-Lavelin, and Dragados.

Federal PSPC has issued a notice to contractors this month that spells out their policy on reimbursing expenses related to COVID-19 impact.

Contrary to the position taken by Infrastructure Ontario and Metrolinx noted above, Federal PSPC is acknowledging that contractors may have incurred additional expenses as a direct result of the pandemic and they are prepared to cover those costs even thought the Federal contract form does not require PSPC to make additional payments.

The 5-page memo from PSPC is downloadable from this LINK and is being shared by OCA for members who are seeking examples of other BUYERS who are showing fairness and leadership in recognizing the unprecedented impact COVID19 has had.

The Canadian Construction Association was instrumental in lobbying PSPC for this so kudos go to CCA.

The Ministry of Transportation is now providing financial assistance related to additional PPE expenses for eligible contracts with closing dates on or before May 15, 2020. These expenses include direct PPE costs for masks, gloves, face shields, sanitizer, and additional washrooms and wash stations.

Compensation is only being offered to contracts that submitted a COVID-19 claim and/or where the Application for Contract Completion specifically noted COVID-19 costs as an exception to the release.

The Ontario Road Builders Association continues to work with MTO to develop pandemic-related contract language. Click HERE to view a FAQ sheet provided by the MTO as well as HERE to view the MTO claims release form.