The city has accused its main LRT contractor of trying to “avoid the consequences” of two derailments last year, as the two sides continue a court fight over a default notice issued by the city.
The city wants the court to declare that the Rideau Transit Group is in contract default because of the derailments in August and September, temporarily shutting down Ottawa’s LRT system both times.
In written arguments filed in court this week, the city expresses near-disbelief that RTG is questioning the fallout of the derailments when it comes to meeting the terms of their contract.
The city’s factum says it’s looking for a “straightforward confirmation” from the court that RTG exceeded a threshold of “failure points” in August and September.
If having two trains derail within six weeks of each other isn’t enough to establish a contract default, “it is unclear what in fact could,” the city’s factum says.
RTG thinks the city is out of line running to the court to get a judge’s endorsement of the default. There’s a process in the contract to handle this kind of dispute before it escalates to the courts, RTG says.
Because the legal fight is playing out in open court, rather than through the contract’s confidential dispute process, the public is getting a view of the professional relationship between the city and RTG. The case has included affidavits from RTG and city officials blaming each other for the LRT system’s shortcomings.
In its own factum filed this week, RTG accused the city of trying to get leverage over the company for the remainder of their contract, especially when there’s no indication the city is willing to cancel the maintenance agreement, it said.
A judge has not yet tested the allegations made by the city and RTG in their respective court filings.
While OC Transpo staff operate the trains, the maintenance of the LRT system is the responsibility of RTG affiliate Rideau Transit Maintenance for 30 years, starting from when the Confederation Line received the OK to launch in summer 2019.
RTG receives monthly maintenance payments from the city based on the performance of the LRT system.
The calculation of failure points helps determine if there has been a default under the terms of the contract.
A train derailment near Tunney’s Pasture Station on Aug. 8, 2021, happened when a train axle broke, requiring a five-day shutdown of the LRT system. Another derailment near Tremblay Station on Sept. 19, 2021, kept trains in the storage yard until Nov. 12, when partial LRT service returned.
No one was hurt in the derailments, but the train vehicle involved in the September derailment was heavily damaged. A root-cause investigation revealed there were under-torqued bolts on a gearbox. The vehicle is still out of service to this day.
The city’s factum suggests it’s impossible to conclude that RTG didn’t accumulate the default-causing failure points after the two derailments. According to the city, RTG exceeded the failure points threshold for a contract default by more than four times in August and September.
“There is no question that RTG is responsible for the derailments,” the city’s factum says.
The main issue “is whether RTG should also bear the contractual consequences resulting from the August and September 2021 derailments,” the city says.
The city also issued a notice of default to RTG in March 2020 as the LRT system was experiencing several maintenance problems impacting the availability of trains. RTG disputed that default notice.
With the latest default notice, RTG has asked the court to stay the city’s application.
A spokesperson for RTG said the company believes the dispute process in the contract “will contribute to a greater spirit of partnership” between RTG and the city.
“In addition to our disagreement with the merits, we are also concerned that a protracted legal dispute serves as a distraction from the real priority, which is working together to continue delivering safe and reliable light rail service to the people of Ottawa,” Helen Bobat said.
The court battle is separate from the provincial LRT inquiry, hearings for which begin on June 13. The Progressive Conservative government called the inquiry to investigate the technical and procurement circumstances of the $2.2-billion Stage 1 LRT system.