Court battle over Low Level Bridge paint failure continues 15 years after makeover

A legal dispute over responsibility for the deteriorating paint on Edmonton’s Low Level Bridge remains unresolved 15 years after the paint dried.

City of Edmonton claims $10M in damages connected to paint failure

Rust is visible on Edmonton's Low Level Bridge. (Craig Ryan/CBC)

A legal dispute over responsibility for the deteriorating paint on Edmonton's Low Level Bridge remains unresolved 15 years after the paint dried.

In 2006, the City of Edmonton hired Alberco Construction to rehabilitate the Low Level Bridge and apply industrial paint to prevent rust.

According to court documents, the paint was expected to last 20 to 25 years, but began deteriorating within the first year. 

In 2013, the city sued Alberco and others involved in the project for negligence and breach of contract.

The city also sued the paint supplier, Termarust Technologies, and the company that applied the paint, Clara Industrial Services, for breach of the five-year warranty.

Clara applied to dismiss the city's claim in 2018, arguing there had been an inordinate delay causing prejudice, meaning the city's delay in advancing the case had compromised the company's ability to defend itself. 

The Alberta Court of Queen's Bench dismissed the application ​last week.

"I find that Clara has not met its onus and has not established it has suffered significant prejudice through either the rebuttable presumption or the evidence presented of actual prejudice," Master in Chambers Lucille Birkett wrote in the Dec. 15 decision.

A worker paints the Low Level Bridge in 2006. (Radio-Canada)

Same paint used on High Level Bridge

The city's chosen paint — Termarust 2100 — had performed well on the High Level Bridge, but did not hold up on the Low Level Bridge.

A 2018 report prepared by Stantec's Reed Ellis, an expert hired by the city, said "signs of coating failure were observed as early as 2008 and continued to become worse in 2009, 2010, and by 2011/2012 the failure had become extensive."

Following a warranty inspection in the summer of 2011, Clara and Termarust blamed each other for the deficiencies in inspection reports. Clara claimed the paint was defective; Termarust said the paint's application was the problem. 

In 2012, both companies indicated they would not assume responsibility for repairs until the cause of the problem was determined.

In its statement of claim, the city said that because of the paint problems, it had suffered an estimated $10 million in loss or damage, plus special damages of $250,000 associated with investigating the paint failure.

The City of Edmonton expected rust-prevention paint would hold up for at least 20 years on the Low Level Bridge but court documents show paint applied in 2006 started deteriorating long before then. (Craig Ryan/CBC)

Key witnesses died

Part of Clara's argument to dismiss the city's action was that two key witnesses died since the filing of the claim.

Dolores Lindal, a third-party inspector hired by the city's consultant, Dialog, to monitor Clara's work died in 2014. Lindal and Dialog are both listed as defendants in the lawsuit.

The other witness, the project site superintendent and Clara's quality control supervisor, died in 2017.

Clara argued they were the only certified inspectors who could have shared observations from their time working on the project.

The company also argued in court that other witnesses' memories could have faded and paint samples could be deteriorated.

The city denied there was an unnecessary delay and argued the case would hinge on analysis from experts, not observations from eye-witnesses. 

CBC News contacted Alberco and Clara but neither company agreed to an interview.

A spokesperson said the city is aware of the court's decision and cannot comment further as the matter is before the courts.

According to the city spokesperson, the Low Level Bridge — which technically contains two separate structures, built 48 years apart — was last coated in 2006. Upcoming rehabilitation work to extend the bridge's life in 2024 and 2025 will not include repainting, in part due to cost concerns.

The city maintains the bridge is safe and reliable, undergoing regular inspection, maintenance and renewal.


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