By Mark Buckshon
Northern Ontario Construction News staff writer
A Superior Court judge has dismissed an appeal by the Ministry of Transportation (MTO), confirming a $14 million arbitral award for Bot Construction related to unanticipated rock excavation costs on the Highway 69 expansion project.
In a decision released Nov. 5, Justice John Callaghan ruled that the construction company could not have reasonably foreseen the massive quantity of excess blast rock encountered during the project, rejecting the province’s argument that the contractor’s methods were to blame.
“Not a balanced job”
The dispute stems from a 2012 contract to expand an 11.2-kilometre section of Highway 69 near Sudbury from two to four lanes. The project required Bot Construction to blast approximately one million cubic metres of Canadian Shield rock, which was intended to be used for road embankments.
The contract was designed as a “balanced job,” implying that the amount of rock blasted would roughly equal the material needed for construction, with minimal surplus. At the time of tendering, the estimated excess rock was a mere 4,445 cubic metres.
However, by the project’s end, Bot Construction was left managing over 118,000 cubic metres of excess rock.
“As it happened, in the end, this was not a balanced job,” Justice Callaghan wrote in his decision.
The “over-drilling” argument rejected
According to court filings, the MTO argued that the excess rock was not a design failure but the result of “over-drilling” by Bot’s blasting subcontractor, Castonguay Blasting Ltd. The Ministry contended that the contractor blasted below the “pay line,” generating waste rock that was their own responsibility to manage.
The arbitrator—and subsequently the Superior Court—rejected this claim. The arbitrator found that Castonguay had “drilled the absolute minimum required to achieve the desired rock cut” and that there was no evidence of negligence. Instead, the excess was attributed to unforeseen site conditions, including “standalone shatter” (rock breakage beyond the blast zone) and design inconsistencies.
As reported by CTV News, the court found the MTO “did not acknowledge there was excess rock” for a significant period, even when estimates of the surplus reached 75,000 cubic metres.
Damages based on actual costs
The MTO also disputed the calculation of damages, arguing that a simple arithmetic error by Bot had overstated the quantity of excess rock by approximately 38,000 cubic metres. The Ministry suggested the award should be discounted by 32 per cent.
Justice Callaghan upheld the arbitrator’s decision to award damages based on the “actual costs incurred” by Bot to manage, haul, and double-handle the rock, rather than a strict unit-price calculation based on volume. The court noted that because the contract provided no designated disposal site for such a large volume of rock, Bot was forced to move the material repeatedly to keep the project progressing.
“The Arbitrator’s fundamental factual finding was that the Excess Rock was unanticipated and could not have been reasonably foreseen at the time of tendering,” Callaghan wrote.
Background
The legal battle has been ongoing for years. As detailed in a 2021 motion regarding discovery, the parties have a history of litigation over rock overbreak issues dating back to 1994. In the current case, the MTO attempted to rely on those past precedents to argue that a “reasonable contractor” would have built a 10 per cent contingency for overbreak into their bid.
However, the arbitrator ruled that the specific conditions on the Highway 69 project—including a lack of disposal sites in the design—constituted a “change in the character of the work” that shifted liability to the province.
According to CTV News, the decision secures approximately $14 million in compensation for the Sudbury-based company.
The court dismissed the appeal and requested the parties agree on costs within 10 days.