Red Deer Piling Inc v Graham Construction and Engineering, 2018 ABQB 376

Court of Queen’s Bench of Alberta Citation: Red Deer Piling Inc v Graham Construction and Engineering, 2018 ABQB 376 Date: 20170508 Docket: 1203 15651, 1203 15646, 1201 13245 Registry: Edmonton Between: Docket: 1203 15651 Red Deering Piling Inc.

Plaintiff - and - Graham Construction and Engineering, A JV, comprising the joint venturers Graham Construction and Engineering LP and Jardeg Construction Services Ltd., and the said Graham Construction and Engineering LP and Jardeg Construction Services Ltd., Her Majesty the Queen in Right of Alberta as represented by Her Minister of Transportation, Telus Communications Company, Shaw CableSystems Limited and Bell Canada Defendants Between: Docket: 1203 15646 Telus Communication Company Plaintiff - and - AECOM Canada Ltd.

Graham Construction and Engineering, A Joint Venture, Graham Construction and Engineering Inc., Red Deer Piling Inc. Stantec Consulting Ltd., T1 Services Group Corp. Axia Netmedia Corporation, Hyroad Surveys Ltd. and

Canadian Locators Inc., ABC Alberta Ltd., and XYZ Alberta Ltd. Defendants Docket: 1201 13245 Registry: Calgary Between: Graham Construction and Engineering, A JV, comprising the joint venturers Graham Construction and Engineering LP and Jardeg Construction Services Ltd.

Plaintiffs - and - AECOM Canada Ltd., Her Majesty the Queen in Right of Alberta as represented by the Minister of Transportation, Red Deer Piling Inc., Stantec Inc. and Telus Communications Company Defendants - and - Red Deer Piling Inc., Aecom Canada Ltd., Stantic Consulting Ltd., T1 Service Group Corp., Axia Netmedia Corporation, Hyroad Surveys Ltd. and Canadian Locators Inc. Third Party Defendants _______________________________________________________ Reasons for Decision of L.A. Smart , Master, Court of Queen's Bench of Alberta _______________________________________________________ Background

[ 1 ] In April 2010 Alberta Transportation (AT) contracted with Graham Construction and Engineering (Graham) to widen part of Alberta Highway 63 (the “Prime Contract”). Graham awarded piling work under the Gen. Contract to Red Deer Piling Inc. (RDP) (the “Piling Contract”). Prior to that, in April 2009 Telus entered into an agreement with AT to relocate its utilities to accommodate the highway construction (the “Telus Contract”). [ 2 ] AECOM Canada Ltd (AECOM) was retained by AT to, inter alia , approve the alignment and construction drawings to relocate the Duct carrying fiber and cable that services the area.

Telus engaged Prestige Telecom Inc. to prepare and issue IFC (Issued for Construction) drawings for the location and installation of the Duct. The Duct fell within a pinch point and had to be located precisely so as not to conflict with a pile wall and most particularly pile PS115. Prestige received input from Leon Seto (Seto) of AECOM and a drawing showing a proposed location for the Duct. The IFC drawings created by Prestige depicted that location.

AECOM was to and did receive a copy of the Prestige IFC drawings for review prior to construction. [ 3 ] Telus contracted with T1 Services Group Corp. (T1) to install the Duct in accordance with the Prestige IFC drawings. During the directional boring by T1 difficulties were encountered and the drill alignment was changed. Although the deviation is described by Telus as slight it resulted in the Duct being located where pile PS115 was to be placed. When the situation requiring the deviation was encountered on July 13, 2009, Bruce Woodman of Telus notified Seto of AECOM. Seto in his reply email said “ . . .

Also, please run any changes to the alignment/profile through us prior to construction. We purposely tucked this line up against the wall to avoid being within the tieback zone”. [ 4 ] On July 17, 2009 Hyroad Surveys (a company hired by Telus) sent an email to Seto attaching the as-built drawings that the horizontal driller prepared and said “please check to see if this location will work”. The email was copied to Prestige. The identical email was sent to Woodman at Telus.

On July 24, 2009 Matt Webb of Telus recorded a discussion with Woodman that “Bruce said he talked with AECOM about slight deviation by T1’s drill shot and they do not believe it is an issue”. On questioning of AECOM’s Corporate Officer he stated that Seto denied that this conversation took place. Later Seto said he “had no recollection” of the conversation with Woodman. T1 at some point received approval from Telus and completed its work in relation to the duct on July 30, 2009 which was accepted by Telus on September 4, 2009.

T1 has provided its opinion that it worked with Telus on many projects and Telus would not have told them to complete their work without having had approval. [ 5 ] In September 2009 Seto requested that Telus provide as-built information with respect to the location for the T1 line installed in the summer of 2009. The as-constructed T1 drill profile was provided on November 17, 2009 to Seto. On September 10, 2010 Seto forwarded the T1 drill profile to Tim Sullivan also of AECOM.

On that same day Sullivan inquired with Telus about as built drawings and was advised that the T1 drill profile was the as-constructed drawings that Telus had previously provided to Seto in November 2009. The drill profile depicted only the vertical orientation of the Duct albeit ostensibly if one were to plot the coordinates sent by Hyroad on July 17, 2009 it would provide the horizontal location. Those coordinates were not plotted. [ 6 ] RDP commenced its work in June 2010. The area of PS115 was the last area to be completed.

On October 22, 2010 RDP started to drill at the nail point placed by a ground surveyor at PS115. No locates were conducted by RDP or Graham in advance of the drilling. During the drilling it struck the Duct and drilling was terminated immediately. No damage was done to the fiber and cable within the Duct nor was service disrupted to Telus customers. Thereafter piling work was delayed until November 18, 2010 while Telus arranged for an alternative location for the Duct. Application [ 7 ] RDP seeks

summary judgment for $271,320 plus GST, interest and costs against Telus. It also seeks dismissal of the claim by Telus against RDP for damages allegedly suffered after RDP contacted and revealed the actual location of the Duct (Action #1203 15646) and dismissal of Telus’s claim for contribution arising from a claim by Graham against Telus arising from the same circumstances (Action #1201 13245).

Discussion [ 8 ] The primary claim of RDP against Telus is made in both private and public nuisance arising from the presence of the Duct being in a location that constituted an interference with RDP’s interest in accessing and using that location to install PS115. Telus did not argue against the legal principle and entitlement of RDP per se but rather relies on its view of the factual underpinnings as insufficient to support

summary determinations and for failure by RDP to complete “locates” as required by s. 448 of the Occupational Health and Safety Code , 2009 (Safety Code). Although the evidence in this latter regard might be described as confusing, it is ultimately correct to conclude that a “locate” was not done. [ 9 ] Telus argues that RDP had both a contractual and legal requirement to conduct “locates”. Graham under its contract with AT was responsible for “locates” and consequently it would be incorporated into RDP’s contract. What the legal basis for this implicit incorporation is not explained by Telus.

There simply is no contract between Graham and Telus and all the more none as between RDP and Telus. As for the legal requirement to “locate” and hand excavate, the Safety Code is for just that, safety.

Although no doubt desirable that “locates” be done not just for safety but also to avoid disruption of key communications systems, the Safety Code simply does not create and impose on RDP a duty of care to Telus and consequent liability in that regard. [ 10 ] AECOM by counsel (although not a respondent to this application) appeared and argued strenuously that AECOM’s role was only to approve the alignment and construction drawings. It was not its role to authorize or approve deviations during construction albeit

it was to secure as-built drawings and provide those to AT. Regardless, if one were to assume it was AECOM’s responsibility then theissue remains whether they gave the approval. There is a factual dispute over whether the conversation between Seto and Woodman ofTelus even took place.

The conversation that is alleged to have been with Woodman is said to include the statement to the effect that“...they (AECOM) do not believe it is an issue.” One must still ask whether this would be sufficient to reach the conclusion that therewas approval in any case. [11] In relation to the action by Telus the allegation is that RDP struck the Duct. That allegation is not in dispute. There is noevidence that the striking of the duct per se required immediate repair or otherwise disrupted service to customers. What it did wasidentify the placement issue.

It did not cause the need to relocate the duct and the consequential costs and disruptions arising from themove. RDP played no role in the decision to require the relocation.

Summary Judgment [12] Guidance for when

summary judgment or dismissal ought to be granted was set out in Hyrniak v Mauldin, 2014 SCC 7 andfurther clarified in a number of Alberta Court of Appeal decisions.(e.g. Windsor v Canadian Pacific Railway, 2014 ABCA 108, 2014ABCA 108 and 776826 Alberta Ltd (c.o.b. Budweiser Motorsports Park) v Ostrowercha, 2015 ABCA 49).Fundamentally, the question is whether a fair and just determination can be made on the record before the Court.

Telus Claim and Third Party Proceedings [13] With respect to the claim by Telus against RDP there are no material facts in dispute and no issues of credibility in the contextof this application. Quite apart from Telus not being in a contractual relationship with RDP or able to establish a duty arising from SafetyCode, the evidence presented simply fails to establish that the damages alleged to have been suffered by Telus were caused by RDP. Iam satisfied the action by Telus cannot succeed. It necessarily follows that its claim for indemnification would then also fail.

RDP Claim/Damages [14] Telus, in addition, to its defence per se, has raised two issues. The first is the potential for conflicting decisions arising in itsaction (QB 1203 15646) against AECOM and others, and in the Graham Construction Action (1201 13245) also naming AECOM andothers in relation to the contractual obligations of AECOM in the approval process particularly the deviation. As noted AECOM arguedstrenuously that approval of the deviation was not its role. It approved the design and construction drawings. Its responsibility thereafterwas to receive as-built drawings and provide them to AT.

I am satisfied that RDP is entitled to damages. However, despite able argumentof AECOM’s counsel I am not satisfied that AECOM or others did not have responsibility for the Duct being located where it was and afailure to ensure proper documenting and communicating of the Telus deviation. The interactions and responsibilities of the playersinvolved in the design and construction are complicated and call for a better evidentiary record. Furthermore, there is a real danger thatto decide that issue here could well result in conflicting decisions.

Whether the record is bolstered by evidence from further questioning,or through trial will be determined by the parties. [15] The second issue is the method used by RDP to prove its damages. RDP relies on a statement by an engineer from Stantec inan e-mail sent to AT stating that amounts submitted to it for costs and extra site occupancy days through Graham Construction werereasonable, and the basis of their request was valid. On questioning it was apparent that spreadsheet information had been providedwithout documents supporting amounts claim.

The amount thought to be reasonable and valid by Stantec incorrectly included time notattributable to the “Telus” delay claim. This latter issue can apparently be corrected using simple arithmetic. Telus says that this opinionshould be given no weight. I agree. Although the author of the e-mail is described as a P. Eng. there is nothing more to satisfy the Courtthat he has the qualifications necessary to give the opinion. There is a description of the incident but no discussion or analysis from theengineer supporting his conclusions.

The material submitted to Stantec appears to have simply been accepted as presented. Conclusion [16] The claim against RDP by Telus in QB # 1203 15646 is dismissed as is the third party claim from RDP by Telus in QB# 120113245. The application for

summary judgment by RDP against Telus in QB# 1203 15651 is dismissed. There is no need to deal with theassessment of damages at this time. I note that RDP was partially successful in having the proceedings against it dismissed but Telussuccessfully resisted the application for

summary judgment. Under the circumstances I am of the view that each party should bear theirown costs on the applications. Dated at the City of Edmonton, Alberta this 8th day of May, 2018.

L.A. Smart M.C.Q.B.A. Appearances: Michael A. Kirk Witten LLP for the Respondent Telus Communications Company J. Philip Warner, QC Bishop and McKenzie LLP for the Applicant Red Deer Piling Inc. Brian G. Kapusianyk, QC Gowling WLG for AECOM Canada Ltd.