A recent decision by Justice Steele in the Ontario Superior Court of Justice has brought some much-needed clarity for road building contractors seeking to uphold (or overturn) an interim-binding decision of a referee under MTO’s dispute resolution procedures.
Background
In HMQ (Minister of Transportation) v. Bot Construction (Ontario) Limited, a payment dispute arose on an MTO project as a result of additional costs incurred by Bot for excavating, stockpiling, and compacting an unforeseen volume of rock material (the “Claim”). Bot ultimately submitted the Claim to a referee in accordance with the contract’s dispute resolution procedure, set out in the February 2016 SP100S55 amendment to the contract’s general conditions.
A contractually mandated meeting was held between the parties and the referee. At the referee’s request, the referee received additional submissions and information after the meeting and before rendering a decision requiring MTO to pay Bot the sum of $341,012.70 plus HST for the Claim. The referee’s decision was provisionally binding on the parties, subject to the right of either party to “review” the decision by filing a notice of protest within 30 days.
The contractual dispute resolution process set out in SP100S55 does not specify a format or any procedural rules for a review of the referee’s decision. The contract provides that either party may “resort to litigation” for a review of a referee decision.
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