The Seven year long Walsh Construction v Toronto Transit Commission case has come to a conclusion… probably. It’s possible that either of these parties may appeal the decision, but at least the decision was awarded. It was a case that took about as long as the project did. The project was the construction of the Pioneer Village Subway Station in Toronto. Construction began on September 22, 2011, and was supposed to be completed by February 4, 2015, but wasn’t completed until November 7, 2018. The case lasted from Walsh’s Statement of Claim on September 12, 2017 to the courts final decision on May 17, 2024.
Both sides laid the blame for the delay of the project firmly at the others feet. Walsh claimed 1,047 days of delay to be caused by the TTC while the TTC acknowledged 411 days, arguing that the court could choose between the two positions. This became the binary framing of the case on which the Court would decide.
The Court found multiple causes of delay in the project: (1) The initial design the TTC gave Walsh was incomplete and not constructible; (2) The volume of mid-project changes were excessively high; (3) The TTC’s average time for responding to RFIs (Request for Information) was excessively high; and (4) Walsh was deprived of possession of the entire construction site, despite being entitled to it.
The Court ultimately dismissed the TTC’s counterclaim entirely, awarding Walsh $52,160,563.
The Court, in reviewing the resources it took to complete the trial throughout the seven years, listed the following: (1) 161 trial days; (2) Over 50 witnesses; (3) Affidavits: These were used instead of viva voce evidence, but they were hundreds of pages long with thousands of pages of exhibits; (4) An additional 1,400 exhibits; (5) Written closing submissions “that were thousands of pages long, with several thousand attachments appended thereto.” The effort of the case and the amount of resources used was simply enormous!
A complex project made more complex by incomplete designs helped to make a complex case that was made more complex by the sheer number of affidavits, witnesses, and additional paperwork. Bruce Reynolds, James Little, and Nicholas Reynolds expressed concern that subcontractors could go out of business because of these long civil cases where it is in the best interest of the contractor to attempt to pass the costs on to the owner before settling with the subcontractors. “It is entirely plausible, particularly in the case of smaller subcontractors, that seven years of non-payment could seriously impact their ability to carry on business.” While the heavyweights can sustain long, protracted, annoying civil cases, the victims of delay tend to be those businesses or people with less financial means. Hopefully, cases like the Walsh case inspire ideas for simplicity in project and case management alike.
