A $616-million extension of Highway 427 north of Toronto has been completed and is ready for use by motorists, according to the consortium that was hired to design, build and maintain the thoroughfare. However, Infrastructure Ontario (IO) has tapped the brakes on issuing a substantial completion certificate.
There are concerns about crossfall gradients on the stretch of highway.
IO maintains the highway was not constructed with a precise two-per-cent gradient. That’s the slight slope of the road that allows water to drain off to the sides. The province is demanding tolerance of no more, or less, than 0.33 per cent.
The province is withholding a substantial completion payment of $144.8 million and wants the consortium, known as LINK427, to repave the highway and finish certain work.
The 6.6-kilometre highway extension runs from Highway 7 to Major Mackenzie Drive. The project also entailed a four-kilometre widening of the existing 427 from Finch Avenue to Highway 7. The expansion features three new interchanges at Langstaff Road, Rutherford Road and Major Mackenzie.
Earlier this year, LINK427 filed suit against IO and the Ministry of Transportation (MTO), accusing the province of using last-minute delay tactics to avoid paying the $144 million plus another $150 million in cost overruns. The consortium asked for an order to direct an independent certifier to issue a substantial completion certificate and order the province to pay up.
According to IO, LINK427 has now withdrawn the claim.
LINK427 is a partnership of ACS Infrastructure Canada Inc., Brennan Infrastructures Inc., Dragados Canada Inc. and Bot Infrastructure Inc.
Neither the consortium nor IO or the MTO are saying much about the matter just now as they have agreed to deal with the matter by non-binding arbitration.
“LINK427 has withdrawn its claim in court against IO/MTO and against the jointly retained Independent Certifier,” IO media relations and issues manager Ian McConachie said in a statement to the Daily Commercial News.
“LINK427 and IO/MTO have agreed to address their disputes about substantial completion and the necessity for LINK427 to complete urgent repair work to ensure the timely and safe reopening of the highway in an arbitration rather than in court.”
How they will settle their differences, however, remains up in the air.
The consortium stated in its notice of application to the court that the province should declare the road finished, stop demands that the road be repaved and do other work that wasn’t required in the initial contract and pay the team.
“This case is about the government abusing its power to force the applicant to make costly last-minute upgrades to a major highway project without compensation,” the consortium wrote in its notice of application.
“In order to secure these upgrades, which were never bargained for, the government is pushing the applicant to the precipice of default with its lenders, depriving the applicant’s subcontractors and suppliers of badly-needed holdback funds and preventing the people of Ontario from using a ready-for-use highway.”
However, IO and the MTO offer a very different take on the matter.
“It remains IO and MTO’s position that the road was not built to the specifications in the contract and that safety and related concerns preclude opening the road until repairs have been completed to ensure that the specifications in the contract have been met,” McConachie said in his written statement.
“IO and MTO are pursing all potential avenues to safely open the highway as soon as possible. As the matter is in arbitration, IO/MTO is not in a position to offer further comment at this time.”
Early works on the project began in May 2018 after many years of planning studies, environmental assessments and other regulatory approvals. Work took place concurrently at separate locations along the route.
Work on many of the bridges on the route began in 2019. Paving on the 427 extension began last summer and continued as work has progressed along the thoroughfare. The project was able to proceed despite COVID-19.
A bulletin released by the consortium in November stated the project was nearing completion and on track for a 2021 opening as planned. On the project website, a notice says that once an opening date is determined for the project, LINK427 will communicate it broadly to motorists and the public.
Drone footage of the project taken in April shows an expansive stretch of empty highway that winds its way to Major Mackenzie and appears ready for motorists. However, the province says it may not open this year unless the dispute is settled soon.
According to the statement of claim filed by LINK427, the consortium was supposed to have substantial completion of the project by Sept. 30, 2020 and must pay $10,000 each business day of delay.
The consortium stated it risks being in default of its obligations if it does not attain certificate of substantial completion by July 1, 2021 and the government is improperly using the deadline to extract concessions.