Item - 2019.IE2.6
Tracking Status
- City Council adopted this item on March 27 and 28, 2019 without amendments and without debate.
- This item was considered by the Infrastructure and Environment Committee on March 18, 2019 and adopted without amendment. It will be considered by City Council on March 27 and 28, 2019.
IE2.6 - Litigation Arising from Contract MCP-13-18WS for the Ellesmere Pumping Station Power Generators Upgrade
- Decision Type:
- ACTION
- Status:
- Adopted on Consent
- Wards:
- All
City Council Decision
City Council on March 27 and 28, 2019, adopted the following:
1. City Council adopt the confidential instructions to staff in Confidential Attachment 1 to the report (February 28, 2019) from the City Solicitor.
2. City Council direct that Confidential Attachment 1 to the report (February 28, 2019) from the City Solicitor, remain confidential in its entirety, as it contains advice that is subject to solicitor-client privilege and it pertains to litigation or potential litigation.
Confidential Attachment 1 to the report (February 28, 2019) from the City Solicitor remains confidential in its entirety in accordance with the provisions of the City of Toronto Act, 2006, as it contains advice that is subject to solicitor-client privilege and it pertains to litigation or potential litigation.
Confidential Attachment - Litigation or potential litigation that affects the City of Toronto and advice or communications that are subject to solicitor-client privilege and litigation privilege.
Background Information (Committee)
https://www.toronto.ca/legdocs/mmis/2019/ie/bgrd/backgroundfile-130457.pdf
Confidential Attachment 1
IE2.6 - Litigation Arising from Contract MCP-13-18WS for the Ellesmere Pumping Station Power Generators Upgrade
- Decision Type:
- ACTION
- Status:
- Adopted
- Wards:
- All
Confidential Attachment - This report is about litigation or potential litigation that affects the City of Toronto. The attachment to this report contains advice or communications that are subject to solicitor-client privilege and litigation privilege.
Committee Recommendations
The Infrastructure and Environment Committee recommends that:
1. City Council adopt the confidential instructions to staff in Confidential Attachment 1 to the report (February 28, 2019) from the City Solicitor.
2. City Council direct that Confidential Attachment 1 to the report (February 28, 2019) from the City Solicitor, remain confidential in its entirety, as it contains advice that is subject to solicitor-client privilege and pertains to litigation or potential litigation.
Origin
Summary
The City contracted with Aplus General Contractors Corp. ("Aplus") to upgrade the Ellesmere Pumping Station (the "Project") pursuant to contract MCP-1318WS and Tender 2-2015 (the "Contract"). The Contract was awarded April 25, 2016.
Aplus did not perform the Contract in accordance with its obligations. The City delivered multiple notices of default under the Contract, which Aplus did not address to the City’s satisfaction or at all.
Aplus ceased active work on the Project in March, 2018. On November 1, 2018, the City terminated Aplus' right to continue with the Work remaining under the Contract.
In April, 2018, Aplus commenced a legal action against the City. The City defended and counterclaimed.
In November, 2018, the City issued a claim against Zurich Insurance Company Ltd. ("Zurich") under the performance bond Aplus provided at the time that the Contract was executed (the "Bond"). The City’s claim is that Zurich failed to fulfil its obligations under the Bond. Zurich denies it was obligated to act under the Bond.
Other actions have been commenced in the Superior Court by subcontractors to Aplus; the City and Aplus are both named as defendants. Callaway Construction Inc. (“Callaway”) has claimed for $1.8 million and Plan Group Inc. (“Plan Group”) has claimed for $5.8 million. In October, 2018, Callaway also commenced a claim against Zurich under the labour and material bond provided by Aplus in connection with the Project. The City defended the actions and delivered a crossclaim against Aplus.
Confidential Attachment 1 contains legal advice from the City Solicitor regarding the litigation that has arisen from this Project.
Background Information
https://www.toronto.ca/legdocs/mmis/2019/ie/bgrd/backgroundfile-130457.pdf
Confidential Attachment 1