In 2024, following a 161 day trial, the Ontario Superior Court of Justice issued an 849 paragraph decision stemming from the construction of the Pioneer Village Station in Toronto.[1]
The lengthy Walsh Construction v Toronto Transit Commission et al. decision covers a number of issues that arise in complex construction claims, including subcontractor flow-through claims previously covered by our colleagues in a 2024 article. The within article focuses on another key issue discussed in Walsh: the use of expert evidence in construction delay claims. Read on for a summary of the key takeaways that lawyers, experts and other project parties involved in construction delay claims should be aware of.
Background
In 2011, the Toronto Transit Commission (TTC) contracted Walsh Construction Company of Canada (Walsh) to construct the Pioneer Village Station in Toronto at a price of CA$165,925,000. Substantial completion was initially slated for November 2014 and contract completion for February 2015. Substantial completion ultimately occurred in June 2017 and contract completion in November 2018.[2]
The Court concluded that there was no doubt the project was “plagued by delay”[3] while the parties disagreed as to who was responsible for that delay. Walsh argued that by providing an incomplete design, inadequate access to the site and improper administration of the contract, TTC caused 1,047 days of delay. Walsh claimed CA$19 million in direct delay damages against TTC.[4] TTC acknowledged that it caused a delay of 411 days, but argued that Walsh was responsible for the remaining 636 days of delay.
Expert evidence
Complex construction projects involve a number of parties and moving parts. Delay claims are equally complicated, with delay capable of categorization as excusable or non-excusable, compensable or non-compensable, compounded with the possibility of concurrent delays which the court indicated requires a “speculative assessment process” to resolve.[5]
Justice Hood emphasized the importance of expert opinion evidence in evaluating the competing delay claims, noting that the delay analysis methodology was “completely foreign” to him and that he was “unable to make a determination of the amount of compensable delay on [his] own” as “any determination of the amount of compensable delay by [him] would be mere guess work.”[6]
The Walsh decision provides important reminders and lessons for lawyers advising their clients on delay claims and for experts involved in tendering expert opinions on the same.
- Merely critiquing an expert’s delay analysis is not sufficient ─ Obtaining an independent expert opinion on delay can be critical to successfully defending against a delay claim
Walsh’s expert performed a schedule analysis, also referred to as a “delay impact analysis” or “time impact analysis” and opined that Walsh was entitled to the 1,047 days of compensable delay.[7] TTC’s expert did not perform its own delay impact analysis, instead TTC’s expert opinion was limited to a critique of Walsh’s expert analysis. This strategic decision proved fatal to TTC’s defence of Walsh’s delay claim.
Justice Hood ultimately awarded Walsh the full 1,047 days of delay, noting that the only delay impact analysis in evidence was that of Walsh’s expert. He held that “if TTC had presented its own delay impact analysis, then I would have been placed in a position of having to choose between the two or arriving at a different number altogether.” Instead, because TTC had not issued its own expert delay impact analysis, the Court was “given a binary choice of 1,046 or 411 days.”[8] The decision suggests that had TTC tendered its own expert evidence regarding the causes and duration of the project delays, the Court may have determined that TTC was responsible for a lesser amount of delay days.
2. Repeated retainers with the same expert and use of an expert in the construction and litigation process does not amount to bias
TTC argued that Walsh’s expert lacked independence, that he was an advocate for Walsh and that his evidence should consequently be given no weight.[9] TTC pointed to three facts in support of its argument:
- Walsh’s expert had previously been retained by Walsh on other projects.
- During the construction of the Pioneer Village Station, Walsh’s expert provided a time impact analysis that Walsh relied on when submitting its claims for delay to TTC.
- Walsh’s expert had direct communication with personnel at Walsh.
Justice Hood rejected TTC’s arguments, concluding that:
- A history of retainers is not in itself evidence of bias.
- It is not unusual for experts to analyze delay impacts during construction and to continue their analysis if litigation ensues.[10]
- It is not unreasonable for there to be communication between a client and expert so that the client can answer questions or provide necessary documents.[11]
3. Expert’s fees that are contingent upon success may suggest bias
Justice Hood noted that while the factors TTC highlighted did not amount to bias, expert fees that are contingent upon success is a telling factor of possible bias. In this case, TTC did not raise any questions about Walsh’s expert fees.[12]
4. An expert’s attitude during cross examination can impact their credibility
In addition to an expert’s background, qualifications and written report, the expert’s attitude on cross-examination is important to establish and maintain credibility. Justice Hood compared the expert witnesses’ conduct and attitude during cross examination. He found that TTC’s expert was “dogmatic in his evidence and somewhat surprised that his view of matters could be challenged, let alone disagreed with.” He concluded that TTC’s expert was prone to advocacy and contrasted with Walsh’s expert, who was patient and straightforward,[13] ultimately preferring Walsh’s expert opinion.
Conclusion
The Walsh decision highlights the importance of marshalling strong expert evidence to both support or defend a delay claim and tips for avoiding any perception of bias. Walsh has appealed the decision to the Ontario Court of Appeal.
For more information on this case or any questions related to the legal implications of this decision on your business, please reach out to Chelsea Wilson or Morgan Burris.
[1] Walsh Construction v. Toronto Transit Commission et al., 2024 ONSC 2782 [Walsh].
[2] Walsh, para 1.
[3] Walsh, para 84.
[4] Walsh, para 24.
[5] Walsh, para 89.
[6] Walsh, para 107.
[7] Walsh, paras 92, 108.
[8] Walsh, para 132.
[9] Walsh, paras 96, 100.
[10] Walsh, para 102.
[11] Walsh, para 103.
[12] Walsh, para 101.
[13] Walsh, para 131.
