Court File No.

ONTARIO
SUPERIOR COURT OF JUSTICE
COMMERCIAL LIST
B E T W E E N:
(Court Seal)

CROSSLINX TRANSIT SOLUTIONS GENERAL PARTNERSHIP and
CROSSLINX TRANSIT SOLUTIONS CONSTRUCTORS
Applicants
and

ONTARIO INFRASTRUCTURE AND LANDS CORPORATION, as representative of the
Minister of Economic Development, Employment and Infrastructure, as representative of Her
Majesty the Queen in Right of Ontario
and
METROLINX
Respondents

APPLICATION PURSUANT TO Rule 14.05(3)(d) and (h) of the Rules of Civil Procedure

NOTICE OF APPLICATION
TO THE RESPONDENTS
A LEGAL PROCEEDING HAS BEEN COMMENCED by the Applicants. The claim
made by the Applicants appears on the following page.
THIS APPLICATION will come on for a hearing on a date to be fixed by the Registrar, at
330 University Avenue, Toronto ON, M5G 1R7.
IF YOU WISH TO OPPOSE THIS APPLICATION, to receive notice of any step in the
application or to be served with any documents in the application you or an Ontario lawyer acting
for you must forthwith prepare a notice of appearance in Form 38A prescribed by the Rules of
Civil Procedure, serve it on the Applicants’ lawyer or, where the Applicant does not have a lawyer,
serve it on the Applicants, and file it, with proof of service, in this court office, and you or your
lawyer must appear at the hearing.

 -2IF YOU WISH TO PRESENT AFFIDAVIT OR OTHER DOCUMENTARY EVIDENCE
TO THE COURT OR TO EXAMINE OR CROSS-EXAMINE WITNESSES ON THE
APPLICATION, you or your lawyer must, in addition to serving your notice of appearance, serve
a copy of the evidence on the Applicants’ lawyer or, where the Applicants do not have a lawyer,
serve it on the Applicants, and file it, with proof of service, in the court office where the application
is to be heard as soon as possible, but at least four days before the hearing.
IF YOU FAIL TO APPEAR AT THE HEARING, JUDGMENT MAY BE GIVEN IN
YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU. IF YOU WISH TO
OPPOSE THIS APPLICATION BUT ARE UNABLE TO PAY LEGAL FEES, LEGAL AID
MAY BE AVAILABLE TO YOU BY CONTACTING A LOCAL LEGAL AID OFFICE.
Date

Issued by
Local Registrar
Address of
court office:

TO:

Superior Court of Justice
330 University Avenue, 9th Floor
Toronto ON
M5G 1R7

ONTARIO INFRASTRUCTURE AND LANDS CORPORATION, as
representative of the Minister of Economic Development, Employment and Infrastructure,
as representative of Her Majesty the Queen in Right of Ontario

c/o Infrastructure Ontario, Suite 2000
1 Dundas St. West
Toronto, Ontario
M5G 1Z3

AND TO:

METROLINX
97 Front Street West
Toronto, Ontario
M5J 1E6

 -3-

APPLICATION
1.

The Applicants make this Application for:
(a)

Declarations regarding the Applicants’ rights under the project agreement made on
or about July 21, 2015 in respect of the Eglinton Crosstown LRT Project (the
“Project Agreement”) and, in particular, the following declarations:
(i)

The COVID-19 pandemic (the “Pandemic”) is an Emergency under section
1.178 of Schedule 1 of the Project Agreement;

(ii)

The Respondents have breached their contractual obligations, including
their obligation to exercise their contractual discretion reasonably and in
good faith, by:
(1)

refusing to acknowledge that the Pandemic is an Emergency; and,

(2)

failing to direct the Applicants to take additional and overriding
procedures under section 62.1(c) of the Project Agreement to protect
public health and worker safety given the Pandemic;

(iii)

The Respondents have a contractual obligation to provide the Applicants
with a Variation Enquiry pursuant to Schedule 22 of the Project Agreement,
having regard to:
(1)

the additional and overriding procedures that are necessary to
protect public health and worker safety given the Pandemic; and

 -4(2)

the Respondents’ directions to the Applicants that the Project
continue uninterrupted through the Pandemic and that the
Applicants comply with all guidance from public health authorities
and governmental bodies in respect of the Pandemic;

2.

(b)

the costs of this proceeding, plus all applicable taxes; and,

(c)

such further and other Relief as this Honourable Court may deem just.

The grounds for the Application are:

Overview
(a)

The Applicants are in the midst of constructing the Eglinton Crosstown LRT
Project in Toronto (the “Project”). The Project is one of the largest and most
complicated infrastructure projects in Canada and utilizes a public private
partnership (“P3”) model.

(b)

The Project is of enormous scope and complexity, requiring the construction and
commissioning of a new light rail transit system with 25 stations, including 15
underground stations and 10 surface stops, over a dedicated 19 km route (10 km of
which will be underground). The Project currently employs over 1500 people.

(c)

Canada and the rest of the world are currently beset by an unprecedented public
health emergency caused by the Pandemic. On March 17, 2020, the Premier of
Ontario declared a State of Emergency throughout the Province under the
Emergency Management and Civil Protection Act and directed large sectors of the

 -5economy to close to protect public health. However, the Province exempted public
transit projects from this direction, and the Respondents directed the Applicants to
continue work unabated through the Pandemic.
(d)

Although the Project Agreement does not expressly contemplate or address the
possibility of a world-wide pandemic, it does contain specific measures allowing
the Respondents to address unexpected Emergencies which may befall the Project.

(e)

The term “Emergency” is defined in the Project Agreement as including, among
other things, any situation which gives rise to an emergency as determined by any
statutory body. In that context, section 62.1(c) of the Project Agreement empowers
the Respondents to provide the Applicants with directions regarding additional and
overriding procedures (as determined by the Respondents or any other statutory
body) to address the Emergency, and to issue a Variation Enquiry accordingly
(compensating the Applicants where the procedures amount to a variation to the
agreed-upon scope of work).

(f)

The Respondents have a legal obligation to exercise this discretion regarding
emergencies reasonably and in good faith.

(g)

Given the unprecedented public health emergency caused by the Pandemic, the
Applicants have repeatedly requested that the Respondents acknowledge the
Emergency caused by the Pandemic and direct them to take additional and
overriding procedures to protect public health and worker safety.

 -6(h)

The Respondents have persistently refused to acknowledge that the Pandemic is an
Emergency (in express breach of the Project Agreement) and have refused to direct
any additional or overriding procedures under the Project Agreement, despite the
ongoing risks posed by the Pandemic.

(i)

While refusing to direct the Applicants to take overriding procedures under section
62.1(c) of the Project Agreement (which would entitle the Applicants to a Variation
Enquiry in accordance with Schedule 22), the Respondents have nevertheless
directed the Applicants to comply with all guidance from public health authorities
and governmental bodies in respect of the Pandemic, while maintaining operations
unabated.

(j)

This direction has had the practical effect of requiring the Applicants to comply
with additional and overriding procedures to protect public health, while purporting
to allow the Respondents to skirt their obligations to provide relief and assistance
to the Applicants through a Variation, thereby fundamentally altering the agreed
allocation of risk under the Project Agreement.

(k)

The Pandemic has had a massive impact on the Project. To continue operations as
directed by the Respondents, the Applicants have been required to develop and
implement procedures, including strict physical distancing measures and sanitation
and screening protocols, while simultaneously working to advance the Project.
Tremendous resources have also been required to review workplans from various
subcontractors and trades to ensure compliance with these procedures and
protocols. Additionally, the Applicants have been required to isolate and quarantine

 -7segments of the Project’s workforce due to potential or actual COVID-19 exposure.
Although the Applicants have been able to continue work, productivity on the
Project has suffered, thereby delaying the work and rendering it much more costly
to perform.
(l)

The Pandemic poses huge risks to the Project going forward, particularly in light
of the Province’s projections regarding the severity of the second wave, which is
presently underway. It was not within the contemplation of the parties to the Project
Agreement, and is in conflict with the provisions of that agreement, that all risks
and costs associated with the adaptive measures made necessary by an emergency
like the Pandemic would be borne by the Applicants.

(m)

The Respondents have breached their obligations of good faith and honest
performance in the circumstances. They have refused to acknowledge the Pandemic
as an Emergency to avoid providing relief due under the Project Agreement and for
fear of the precedent this acknowledgement would set in other P3 projects across
the Province. They have also refused to issue a Variation Enquiry, despite the fact
that they have, as a practical matter, directed the Respondents to implement
additional and overriding procedures to protect public health.

(n)

The Respondents have also actively frustrated the Applicants’ efforts to address
the Respondents’ ongoing breaches of contract through the dispute resolution
mechanism contemplated by the Project Agreement, thus necessitating this
Application. The Respondents are doing so as part of a concerted effort to thrust all

 -8of the risks of the Pandemic upon the Applicants, in breach of the Project
Agreement.
The Parties
(o)

The Applicant, Crosslinx Transit Solutions General Partnership (“Project Co”), is
a general partnership, comprised by its partners, ACS Crosslinx Partner Inc., Aecon
Crosslinx GP Inc., EllisDon Crosslinx Partner Inc. and SNC-Lavalin CTS Partner
Inc. Project Co was formed to provide project operation, including design,
construction, financing, maintenance and rehabilitation for the construction of the
Project.

(p)

The Applicant, Crosslinx Transit Solutions Constructors (“CTSC”), is a general
partnership comprised of its partners, SNC-Lavalin Constructors (Pacific) Inc.,
Dragados Canada Inc., EllisDon Civil Ltd., and Aecon Infrastructure Management
Inc. CTSC was formed to act as the general contractor for the Project.

(q)

Together, CTSC and Project Co are “Crosslinx”.

(r)

The Respondent, Ontario Infrastructure and Lands Corporation, as representative
of the Minister of Economic Development, Employment and Infrastructure, as
representative of Her Majesty the Queen in Right of Ontario (“HMQ”), is a nonshare capital corporation continued and amalgamated under the Ontario
Infrastructure and Lands Corporation Act, 2011, SO 2011, c 9, Schedule 32, as
amended.

 -9(s)

The Respondent, Metrolinx, is non-share capital corporation continued under the
Metrolinx Act, 2006, SO 2006, c 16 and a Crown agency in accordance with the
Crown Agency Act, RSO 1990, c C48.

(t)

Together, HMQ and Metrolinx are “HMQE” and are responsible for the
development of the Project for the Province of Ontario.

The Project Agreement
(u)

HMQE and Project Co entered into the Project Agreement on or about July 21,
2015. Under the Project Agreement, Project Co undertook to design, construct,
finance and maintain the Project.

(v)

On the same date, Project Co entered into a contract with CTSC to design and
construct the Project (the “Construction Contract”). The Construction Contract
generally mirrors the terms of the Project Agreement, particularly in respect of the
obligations to design and build the Project.

(w)

Amongst other things, the Project Agreement provides that:
(i)

upon the occurrence of an Emergency, Crosslinx shall comply with the
Emergency Response Plan (“ERP”) (s. 62.1(a) & (b));

(ii)

if, in respect of any Emergency, HMQE notify Crosslinx that they require
compliance with any additional or overriding procedures as may be
determined by HMQE or any other statutory body, then Crosslinx shall,
subject to Variation Procedures, comply with such procedures on the basis

 -10that such procedures take precedence if they overlap with the ERP (s.
62.1(c));
(iii)

an Emergency means any situation, event, occurrence, multiple occurrences
or circumstances that:
(1)

constitutes or may constitute a hazard to or jeopardizes or may
jeopardize or pose a threat to health and safety of any persons
(including System Users and Province Persons) or any part or the
whole of the Project Co System Infrastructure or New Third Party
Infrastructure;

(2)

causes or may cause damage or harm to property, buildings and/or
equipment;

(3)

constitutes a hostage situation or state of emergency declared as
such by the HMQ Representative or HMQE (acting reasonably);

(4)

materially interferes with or prejudices or may materially interfere
with or prejudice the safe operation of the Project Co System
Infrastructure or New Third Party Infrastructure, or any part of the
Lands, the conduct of Project Operations, or the conduct of
Governmental Activities; or

(5)

constitutes a period of transition to or from war;

 -11and which, in the opinion of HMQE, requires immediate action to prevent
and/or mitigate the occurrence (or risk of the occurrence) of the foregoing,
or
(6)

which gives rise to an emergency, as determined by any statutory
body including (notwithstanding the generality of the foregoing) an
Emergency Service Provider (s. 1.178).

(iv)

if HMQE propose or are obligated pursuant to the terms of the Project
Agreement or Applicable Law to initiate a Variation, as defined in Schedule
22, s. 1.1(v) as an addition, reduction, substitution, omission, modification,
deletion, removal or other change to the whole or any part of the Project
Operations, including in relation to the whole or any part of the Works or
the Maintenance and Rehabilitation Services (a “Variation”), it shall
deliver to Crosslinx a written Notice of the proposed Variation (a
“Variation Enquiry”) (s. 1.3, Schedule 22);

(v)

in the case of a dispute between the Parties, if the Parties are unable to
resolve a dispute at the lowest level of management, a written Notice of
Dispute (the “Notice of Dispute”) may be delivered which shall initiate the
dispute resolution process (s. 1.3, Schedule 27);

(vi)

on receipt of a Notice of Dispute, an HMQE representative and Crosslinx
representative shall meet (“Party Representatives Resolution Meeting”)
and each shall promptly and diligently make all reasonable bona fide efforts
to resolve the dispute (s. 2.1, Schedule 27); and

 -12(vii)

if a Dispute is not resolved by the Party Representatives within 10 business
days after receiving the Notice of Dispute, or within such longer period of
time as the Party Representatives may both expressly agree, then at any time
after the expiry of such period of time either Party Representative may refer
the dispute to a senior officer (“Senior Officer Discussions”) (s. 3.1,
Schedule 27).

The Pandemic
(x)

In or around early March 2020, Crosslinx received notice from two of its suppliers
that, due to the COVID-19 outbreak in China, there would be delays in the delivery
of certain equipment manufactured in China. Crosslinx notified HMQE of these
events on or about March 3 and 13, 2020. Crosslinx advised HMQE that the
situation was extremely fluid and was changing on a daily basis.

(y)

On or about March 5, 2020, Crosslinx wrote to HMQE to advise that it was
continuing to monitor the evolving COVID-19 situation. Crosslinx enclosed a copy
of a notice it received from one of its subcontractors, Bombardier, in which
Bombardier advised that it had been receiving notices from its Chinese suppliers
warning of potential impacts on contract performance as a result of the Pandemic.

(z)

On March 14, 2020, Crosslinx updated HMQE on the potential impacts to the
Project as a result of the Pandemic. Crosslinx noted that the developing situation
may trigger Governmental Authorities to adopt measures to prevent the spread of
the virus. Crosslinx advised HMQE that the circumstances created by the Pandemic
were outside the normal course of business and may impact the costs and schedule

 -13of the Works. Crosslinx offered to meet with HMQE and other key stakeholders to
discuss prevention, mitigation and management of the Pandemic.
(aa)

On or about March 17, 2020, the Province of Ontario declared a State of Emergency
due to the Pandemic pursuant to s. 7.0.1 (1) of the Emergency Management and
Civil Protection Act (the “Provincial Emergency Order”). As a result of the
Provincial Emergency Order, schools, restaurants, theatres, and many indoor
facilities were closed, along with the prohibition of all organized public events of
over 50 people. The Province of Ontario reported 186 confirmed cases of COVID19, while the City of Toronto reported 108 confirmed cases of COVID-19.

(bb)

On or about March 19, 2020, more than two weeks after Crosslinx first wrote to
HMQE with respect to the urgent situation created by the Pandemic, HMQE
responded. HMQE acknowledged that its primary consideration must be the safety
of the workers. HMQE stated that Crosslinx was responsible for understanding and
complying with its obligations under the Project Agreement, including obligations
pursuant to the Ontario Occupational Health and Safety Act (“OHSA”). HMQE
noted that Crosslinx should consider its correspondence in the context of guidance
that it was receiving from municipal and provincial health authorities.

(cc)

On or about March 23, 2020, the City of Toronto declared a State of Emergency
due to the Pandemic.

(dd)

On or about March 23, 2020, Crosslinx wrote to HMQE and requested that it:
declare an Emergency under the Project Agreement; direct Crosslinx to take
“additional and overriding procedures”; and provide Crosslinx with a Variation

 -14Enquiry. Crosslinx noted that the Pandemic was an Emergency, far beyond
anything contemplated by the Project Agreement, which required HMQE to direct
additional measures under section 62.1 of the Project Agreement to salvage the
practical and financial viability of the Project itself and to protect the safety of
workers and public health more broadly. Crosslinx also proposed to HMQE
additional and overriding procedures to address the Pandemic, which it articulated
in a detailed schedule to its letter (“Schedule A”). Crosslinx requested an
immediate meeting within 72 hours of the Works Committee for the Project to
discuss this request.
(ee)

HMQE failed to respond to the request for a meeting.

(ff)

On or about March 24, 2020, Crosslinx wrote to HMQE and noted that Ontario had
directed the closure of all non-essential businesses as of March 24, 2020 at 11:59
p.m. Crosslinx requested immediate direction from HMQE as to whether the
Project was considered an essential service and whether HMQE was directing
Crosslinx to continue operating on that basis. Crosslinx also noted that it looked
forward to urgently receiving the directions it had requested in its March 23, 2020
letter.

(gg)

HMQE responded that day and advised that it considered the Project to be an
essential service and that the Project was to remain open and operational. HMQE
failed to declare an Emergency or issue a Variation Enquiry due to the Pandemic.

(hh)

On or about March 26, 2020, Crosslinx advised HMQE of further impacts to the
Project as a result of the Pandemic. In addition to construction activity delays,

 -15Crosslinx advised HMQE that a group of crew members working for one of its
subcontractors had been exposed to three individuals with COVID-19. As a result,
23 workers were in self-isolation and 64 workers had been removed from the
impacted Project site. Crosslinx once again urged HMQE to declare an Emergency.
(ii)

On or about March 27, 2020, Crosslinx wrote to HMQE again and stressed the
urgency of the situation. Crosslinx noted that HMQE had not provided any
substantive response to Crosslinx’ letter of March 23, 2020 and had failed to declare
an Emergency under the Project Agreement or to provide the urgent overriding
directions requested by Crosslinx in the interest of public health and worker safety.
Crosslinx reminded HMQE that, earlier in the week, a large group of labourers had
been sent home to self-isolate for 14 days due to a potential COVID-19 exposure.

(jj)

On the same day, HMQE advised Crosslinx that it understood that the Pandemic
was serious and would likely have significant impacts that would need to be
mitigated under the Project Agreement, yet HMQE refused to declare an
Emergency or issue a Variation Enquiry.

(kk)

On or about April 1, 2020, Crosslinx advised HMQE that its failure to declare an
Emergency despite Crosslinx’ repeated and urgent requests was inconsistent with
the actions of government actors, including the Province of Ontario and City of
Toronto, who had already declared a State of Emergency. Crosslinx noted that
HMQE had not provided any justification, rationale, or contractual basis for its
failure to do so. Crosslinx again requested that HMQE immediately issue a
Variation Enquiry.

 -16(ll)

On or about April 2, 2020, Crosslinx provided HMQE with an update on the
Pandemic’s impacts on Crosslinx’ subcontractors and suppliers. Crosslinx advised
HMQE that, in total, it had received 54 Notices from its subcontractors (51 of which
were summarized in an accompanying table and three of which Crosslinx had
previously provided to HMQE) regarding general impacts caused by the Pandemic
which could result in future claims for delay and increased costs.

(mm) On or about April 3, 2020, Ontario updated the list of essential businesses that could
remain open during the Pandemic. Crosslinx wrote to HMQE that same day and
requested immediate direction as to whether HMQE continued to consider the
Project an essential workplace.
(nn)

On or about April 8, 2020, HMQE wrote to Crosslinx and denied that it was entitled
to a Variation in relation to the Pandemic.

(oo)

Starting on or about April 9, 2020, Crosslinx began providing HMQE with a weekly
update on the Pandemic’s impacts on Crosslinx’ subcontractors and suppliers.
Crosslinx provided HMQE with a COVID-19 Correspondence Log which was
divided into three parts: General Correspondence, Notices of Claims, and Notice of
Impact from Subcontractors and Suppliers.

(pp)

On or about April 13, 2020, Crosslinx again wrote to HMQE regarding its ongoing
refusal to declare an Emergency. Crosslinx noted that HMQE, as a government
actor, had directed Crosslinx to carry on work through the Pandemic, creating
ongoing risks to public health and worker safety, without recognizing that an
Emergency existed and without providing any directions under the Project

 -17Agreement to address the inevitable impacts of COVID-19 on the Project.
Crosslinx enclosed an updated Schedule “A” setting out additional measures that
Crosslinx had adopted in the interest of public health and worker safety.
(qq)

That same day, HMQE responded to Crosslinx’ request (from 10 days earlier),
wherein Crosslinx sought clarification as to whether HMQE continued to consider
the Project to be an essential workplace in light of the Government of Ontario’s
Order of April 3, 2020 updating the list of essential workplaces. HMQE once again
directed Crosslinx that the Project was to remain open and operational.

(rr)

On or about April 15, 2020, Crosslinx provided HMQE with a further weekly
update on the Pandemic’s impacts on Crosslinx’ subcontractors and suppliers.

(ss)

On or about April 17, 2020, Crosslinx advised HMQE that the schedule for vehicle
burn-in activities had been impacted by the Pandemic and would not commence in
early April 2020 as planned. Crosslinx also reported that between April 3 and 10,
2020 subcontractor absenteeism was between 17% to 27%, CTSC Station staff
absenteeism (including those working from home) was between 40% to 50%, and
that there had been delays in several key systems integration activities.

(tt)

On or about April 21, 2020, HMQE advised that it would not be ordering additional
and overriding measures due to the Pandemic and that Crosslinx was required to
comply with the OHSA, and guidance from public health authorities and
governmental bodies.

 -18(uu)

As of April 23, 2020, Crosslinx had received a total of nine notices of claims and
71 notices of impact by subcontractors and suppliers due to the Pandemic.

(vv)

In April 2020, Crosslinx suffered a significant loss of productivity across Kennedy
Station due to significant resource reduction, manpower availability, suspension of
activities in other provinces such as Quebec, and additional safety/hygiene
measures.

(ww) By May 8, 2020, Crosslinx had received a total of nine notices of claims and 77
notices of impact by subcontractors and suppliers due to the Pandemic. Crosslinx
also continued to report system-wide impacts to the Project as a result of the
Pandemic.
(xx)

The Project has continued to experience significant impacts as a result of the
Pandemic and Crosslinx has continued to provide HMQE with updates on these
impacts. Crosslinx anticipates that, as the second wave of the Pandemic surges, the
impacts on the Project will increase and compound.

HMQE’s Abandonment of the Dispute Resolution Process
(yy)

On May 11, 2020, Crosslinx delivered a Notice of Dispute pursuant to Schedule 27
of the Project Agreement, arising from HMQE’s refusal to declare an Emergency
and refusal to issue a Variation Enquiry despite directing Crosslinx to continue
work as an essential workplace.

(zz)

Given the pressing nature of the issue, Crosslinx suggested that the issue proceed
directly to the Independent Certifier or, if HMQE was not prepared to consent to an

 -19expedited process, Crosslinx requested that HMQE provide its availability for a
meeting as soon as possible (and in any event within 10 Business Days as required
pursuant to section 3.1 of Schedule 27 of the Project Agreement).
(aaa)

On or about May 15, 2020, in an effort to facilitate the dispute resolution process,
and in response to a request from HMQE, Crosslinx provided HMQE with a
COVID-19 claim substantiation package pursuant to section 2.1 of Schedule 27 of
the Project Agreement. The package included particulars of the impacts caused by
the Pandemic.

(bbb) On or about May 26, 2020, HMQE responded to Crosslinx’ Notice of Dispute, and
took the position that it was not obligated to declare an Emergency or to issue a
Variation Enquiry, and that additional and overriding measures were not required.
HMQE also advised that Crosslinx’ claim substantiation package had not provided
sufficient detail to substantiate its claim.
(ccc)

On or about May 27, 2020, Crosslinx had a Party Representatives Resolution
Meeting with HMQE, which was unsuccessful in resolving the dispute between the
parties.

(ddd) On or about June 2, 2020, HMQE refused to proceed with Senior Officer
Discussions and took the position that more information was required before it
would progress this matter to the Section 3, Schedule 27, Senior Officers level.

 -20(eee)

On or about June 1 and June 5, 2020, Crosslinx produced extensive additional
documentation to HMQE pursuant to section 2.1 of Schedule 27 of Project
Agreement.

(fff)

On or about June 10, 2020, Crosslinx advised HMQE that unless it complied with
its obligations and progressed to Senior Officer Discussions in good faith, Crosslinx
would understand HMQE to have abandoned the dispute resolution process.

(ggg) Since that time, HMQE has refused to engage in the Senior Officer Discussions
required by Schedule 27 of the Agreement, taking the position that it requires
extensive documentary discovery before it will do so. Although HMQE denies that
it has abandoned the dispute resolution process, the purpose and effect of HMQE’s
position has been to frustrate the dispute resolution process under the Project
Agreement.
HMQE’s Breaches of Contract
(hhh) The Pandemic is clearly an Emergency under the Project Agreement. HMQE has,
in reality and in substance, directed Crosslinx to comply with additional and
overriding procedures without invoking the contractual mechanisms designed to
protect Crosslinx in the event that this occurred. HMQE is obligated in these
circumstances to issue a Variation Enquiry accordingly. HMQE has breached the
Project Agreement in refusing to do so.

 -21(iii)

Further, HMQE was and is obliged to exercise its contractual discretion under the
Project Agreement honestly, reasonably and in good faith. It has failed to comply
with this obligation, as pleaded above.

(jjj)

The Applicants request declaratory relief to address HMQE’s ongoing breaches of
contract, as articulated in the prayer for relief.

Rules Relied Upon
(kkk) The Applicants further rely upon Rules 14.05, 38, and 39 of the Rules of Civil
Procedure, RRO 1990, Reg 194, and such further and other grounds as counsel
may subsequently advise.
Evidence at the Hearing
3.

The following documentary evidence will be used at the hearing of the application:
(a)

The Affidavit of Geoff van der Lee to be sworn; and,

(b)

Such further and other evidence as the lawyers may advise and this Honourable
Court may permit.

 -22(Date of issue)

LENCZNER SLAGHT ROYCE
SMITH GRIFFIN LLP
Barristers
Suite 2600
130 Adelaide Street West
Toronto ON M5H 3P5
J. Thomas Curry (25740V)
Tel:
Fax:
Email:

(416) 865-3096
(416) 865-9010

tcurry@litigate.com

Matthew P. Sammon (46985F)
Tel:
Fax:
Email:

(416) 865-3057
(416) 865-9010

msammon@litigate.com

Andrew Parley (55635P)
Tel:
Fax:
Email:

(416) 865-3093
(416) 865-2873

aparley@litigate.com

Andrea Wheeler (66525D)
Tel:
Fax:
Email:

(416) 865-3058
(416) 865-2859

awheeler@litigate.com

Lawyers for the Applicants

 CROSSLINX TRANSIT SOLUTIONS GENERAL PARTNERSHIP and
CROSSLINX TRANSIT SOLUTIONS CONSTRUCTORS
Applicants

-and-

ONTARIO INFRASTRUCTURE AND LANDS CORPORATION and
METROLINX
Respondents
Court File No.

ONTARIO
SUPERIOR COURT OF JUSTICE
COMMERCIAL LIST
PROCEEDING COMMENCED AT TORONTO

NOTICE OF APPLICATION

LENCZNER SLAGHT ROYCE
SMITH GRIFFIN LLP
Barristers
Suite 2600-130 Adelaide Street West
Toronto ON M5H 3P5
J. Thomas Curry (25740V)
Tel:
Fax:
Email:

(416) 865-3096
(416) 865-9010

tcurry@litigate.com

Matthew P. Sammon (46985F)
Tel:
Fax:
Email:

(416) 865-3057
(416) 865-9010
msammon@litigate.com

Andrew Parley (55635P)
Tel:
Fax
Email:

(416) 865-3093
(416) 865-2873
aparley@litigate.com

Andrea Wheeler (66525D)
Tel:
Fax
Email:

(416) 865-3058
(416) 865-2859
awheeler@litigate.com

Lawyers for the Applicants