TEHKUMMAH—Documents released at the July 11 meeting of Tehkummah council shed light on a three-way court dispute between the Township of Tehkummah, contractors R. M. Belanger Construction and Kresin Engineering and Michael Kresin over a $300,000 bill for work the town maintains should be set at $210,000.
The initial claim, filed in October 31, 2016, seeks damages for breach of contract and negligence with an estimated tally of “$500,000; a prejudgment and postjudgment interest in accordance with the provisions of the Courts of Justice Act; its costs in the actions, including HST on a substantial indemnity scale and, such further and other relief as this Honourable Court may deem just.”
The parties to the suit include the Township of Tehkummah, R. M. Belanger, a construction company with head offices in Chelmsford; Kresin Engineering Corporation, an engineering firm and consultants with head offices in Sault Ste. Marie; and Michael Kresin, a professional engineer and “the principal and directing mind of Kresin Engineering Corporation (Kresin).”
In the statement of claim filed with the courts it is alleged that in 2007 the township had retained Kresin Engineering to conduct an assessment of the seven municipally owned bridge structures in the township, including the Government Road bridge crossing the Manitou River. As a result of that assessment the township made applications for funding from the Building Canada Fund in 2008 for a replacement bridge. Kresin completed the application on behalf of the township that estimated total costs for the project at $900,000.
Also according to the statement of claim, Kresin was retained to prepare a design for the realignment of Government Road and the construction of a new bridge, north of the existing bridge in order to allow the existing bridge to remain open during construction. In 2009 the Building Canada Fund approved $600,000 in funding (the remainder to be supplied by the municipality). Kresin was retained to implement the project, including planning, preliminary design, detailed design, tendering and contract administration. Kresin was also required to retain all necessary sub-consultants, conduct geotechnical investigations, including borehole testing and obtaining all necessary permits. Kresin was also depended upon to ensure safety and protect the best interests of the township.
The statement claims that during the design phase “it became apparent that the costs of the new alignment north of the existing bridge far exceeded the funded budget for the project” and as a result, the township contracted Kresin to design a new bridge at the existing site of the old bridge.
In 2014 Kresin provided the township with a preliminary design depicting a two-lane, single span bridge with a wider platform and longer span supported on abutments. Kresin was authorized to proceed with the construction of the new bridge. The tendered design included realignment of the roadway and a temporary pedestrian crossing during construction.
The Belanger contract set the price at $996,724, plus HST. The tender called for construction to be completed within a specified time.
Then, when construction began, it was discovered that the existing subsurface conditions were different than what Kresin had assumed from the boreholes for the different road alignment and bridge location, with the result that parts of the bridge construction could not be placed where the drawings indicated. This led to redesign revisions from traditional concrete footings to steel H-piles fitted with rock points and for the sheet pile enclosures to be located at different locations than what was in the drawings. As a result, the township approved seven change orders and still wound up with a bridge design the township deems is inferior to the design they had approved for tender.
The township lists nine alleged deficiencies ranging from temporary wood panels that should be replaced with steel, lack of proper retaining systems, backfill drainage issues, improper road alignment, a dip not contemplated in the original design, inadequate and ineffective guiderails and end treatment systems, drainage issues that were not adequately addressed, a lack of line painting, a rockfill embankment than needs grading to be stable and a lack of as constructed or as built drawings provided on completion of the project.
The statement of claim alleges seven items of negligence and breach of contract, including a failure to conduct a proper geotechnical investigation, providing unsuitable drawings and specifications, failure to complete its work to a prudent standard, failure to provide proper administration of the project, refusal to address the deficiencies, failure to ensure design and execution of the project within budget and not providing the as build plans upon completion of the project.
Aiming at Belanger, the statement lists six alleged acts of negligence and breach of contract by the contractor, including completion of the project 119 days after the required date of July 31, 2014; not installing the guard rails; not constructing the alignment in accordance with the contract; the aforementioned dip (due to settlement); backfill drainage outlet not located in accordance with the design and the aforementioned lack of grading on the embankment.
The township’s claims include: $117,000 as a penalty for late performance; $5,000 for an overcharge; $2,825 for fire services and $23,750 for a credit due to the lack of guard rails.
The counterclaim by Belanger claims that all work has been completed and seeks a payment of $308,818.15 it says remains outstanding along with interest and costs. The total bill for the work was revised to $1,023,812, with $29,870 worth of credits provided to the township. The contractor received three payments for the work, including chques for $94,352,23, $230,940.02 and $489,044.06.
The counterclaim by Kresin maintains that the company carried out their services and work in a “responsible, good and workmanlike manner,” and deny that they were in any way negligent and cost overruns were unforeseeable and seeks that the claims be dismissed with costs.
The information was provided to the council and public as an information item, but councillors expressed frustration that they had little idea of what progress, if any, has been made on the actions.
