Large construction disputes are regularly resolved privately through contractually-mandated or subsequently-agreed upon processes, including arbitration, dispute boards, mediation, and even structured negotiations. There are a number of reasons for this shift towards private dispute resolution processes, including cost effectiveness, court backlogs, construction expertise, and privacy (which reasons are not the subject of this article). However, due to the increased use of such processes, it has become less common for courts to be presented with complex delay and disruption claims, meaning that there are limited opportunities for them to offer new guidance on how such claims are viewed from the bench.
Fortunately, the Superior Court was recently presented with such an opportunity in Walsh Construction v. Toronto Transit Commission et al., 2024 ONSC 2782 (“Walsh”), and in response, has a offered a number of valuable takeaways for the construction industry and construction law practitioners, including counsel and arbitrators, regarding what can be expected in the resolution of a complex construction claim.
Notably, Walsh addresses a number of issues regularly found in complex construction disputes, including design issues, allegations of excessive scope changes, expert schedule and quantum analysis, flow-through of subcontractor claims, liquidated damages, and allegations of contract mis-administration, among many other issues.
Given the length of the Court’s analysis – totaling nearly 850 paragraphs – this case comment only covers a handful of the case’s key issues, rather than offering an exhaustive analysis.
Below, we provide an overview of the case, as well as outline the case’s key takeaways and key questions raised.
Please log in to read the full article.