The consortium responsible for the construction of the Eglinton Crosstown has filed a lawsuit against Metrolinx and Infrastructure Ontario, alleging that they should not be held responsible for delays and cost overruns related to the COVID-19 pandemic.

In a notice of application filed with the Ontario Superior Court of Justice on Thursday, Crosslinx Transit Solutions accused the provincial agencies overseeing the project of breaching their contractual obligations by refusing to formally recognize the pandemic as an emergency.

They allege that by doing so the agencies have been able to “skirt their obligations to provide relief and assistance” while still requiring the consortium to comply with “additional and overriding procedures to protect public health.”

As a result of those procedures and the associated need to isolate and quarantine some members of the workforce at times, they say that “productivity on the project has suffered, thereby delaying the work and rendering it much more costly to perform.”

“It was not within the contemplation of the parties to the project agreement, and is in conflict with the provisions of that agreement, that all risks and costs associated with the adaptive measures made necessary by an emergency like the pandemic would be borne by the applicants,” the documents state. “The respondents have breached their obligations of good faith and honest performance in the circumstances.”

In the court documents, lawyers for Crosslinx say that their clients have had to dedicate “tremendous resources” to review work plans from various subcontractors to ensure that they are in keeping with new regulations brought about by the COVID-19 pandemic.

They say that they have also had to deal with increased rates of absenteeism.

During one week in April, they say that subcontractor absenteeism was between 17 and 27 per cent and the absenteeism rate for Crosslinx station staff was between 40 and 50 per cent.

There were also significant impacts to the project in March when 64 workers had to be sent home to self-isolate after they came into contact with confirmed cases of COVID-19, the documents state.

For its part, Metrolinx has suggested that the consortium was having trouble meetings its work schedule well before the pandemic.

In a statement released on Thursday morning, President and CEO Phil Verster said that Crosslinx has achieved their “achieved their monthly production rates in only four months out of the last 26 months, pushing the expected completion date from Sept. 2021 to “well into 2022.”

He said that since August, 2018, Crosslinx has achieved only 72 per cent of the work they were supposed to have completed.

“Metrolinx has a singular focus and objective, which is to complete the Eglinton Crosstown at the soonest possible date. We have been actively supporting Crosslinx Transit Solutions (CTS) to deliver on their promises and their schedule, however, CTS has consistently failed, month after month, for two years, to achieve their production rates,” he said.

Costs have increased by $134M

Verster said that Metrolinx has worked hard to help Crosslinx “speed up their work” both by ensuring that the project was deemed a “essential workplace” earlier in the pandemic and working in partnership with the City of Toronto to “take advantage of reduced traffic volumes” and fee up space for labourers “to work in critical areas.”

In a subsequent interview with CP24 he characterized the latest legal action taken by Crosslinx as just the latest salvo in a protracted legal battle that has been ongoing since 2018.

“Unfortunately in the construction industry claims and this type of litigating action is the order of the day. CTS has submitted something like 150 claims on us in the last two years, very little substance to most of them. It is a very litigious environment,” he said. “However this is four big companies that work together and we have a lot of respect for them. This is not seen as hostile. Unfortunately it is just seen as the way to do business

That is why I am massively oriented to less of this and more work on the ground. I think litigation and termination and default is not really the way forward.”

While Metrolinx has suggested that Crosslink was already behind on the project when the pandemic struck, the consortium said in a statement that it has already received “hundreds of notices from subcontractors requesting relief because of the pandemic” and expects that at least $134 million will be added to the cost of the project as a result of just the first wave of the pandemic.

They say that they are taking legal action with “deep regret” but ultimately decided to pursue the matter in the courts after “repeated efforts to work collaboratively with Metrolinx and Infrastructure Ontario failed.”

“Metrolinx's and Infrastructure Ontario's refusal to address COVID-19 impacts could now result in additional LRT project delays and legal costs for Ontario taxpayers,” the statement warns.

None of the claims contained in the notice of application have been proven in court.