City's battle over paint job on Edmonton bridge struck down by Alberta's highest court

A legal dispute over deteriorating paint on Edmonton's Low Level Bridge has been dismissed in Alberta's highest court, nearly 20 years after the job was done.

The City of Edmonton's latest attempt to hold contractors responsible for a poor paint job on the northbound span of the historic bridge over the North Saskatchewan River has been struck down in the Court of Appeal of Alberta.

Clara Industrial Services Limited, the company that applied the bridge's latest coat of colour, will not be held liable for peeling, rusting paint on the busy commuter crossing. 

The city had appealed a lower court decision to dismiss its action against the Ontario-based painting company for breach of warranty.

In a judgment issued Dec. 19, the Alberta Court of Appeal upheld the dismissal, finding that the city's delays in advancing the case were significant enough to prejudice the proceedings against Clara Industrial and compromise the company's ability to fairly defend itself against the lawsuit.

Case 'remains active'

The judgment is the latest twist in a protracted legal battle over who should foot the bill for a "paint failure" on the northbound span.

The lawsuit began in 2013 and stems from a major makeover of the bridge completed 19 years ago.

It's unclear what the judgment will mean for the city's case against the other contractors involved in the project, companies which were were not party to the appeal decision.

In a statement to CBC, the City of Edmonton said it was in the process of reviewing the court's decision. 

"While we are disappointed with the outcome in the court, there are elements of the matter that remain active, and we cannot provide additional comment at this time," the statement said.

The Low Level Bridge is technically two bridges, one northbound and one southbound.

In 2006, the city hired Alberco Construction to rehabilitate the northbbound bridge and apply industrial paint to prevent rust.

Clara Industrial was contracted to paint the bridge using paint from Termarust Technologies Inc.

Clara Industrial and Termarust provided the city with a five-year warranty on the work. 

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

By 2008, it became apparent there were defects and deficiencies in the paint. By late 2011, the city called on the companies to honour the warranty and repair the work.

Clara Industrial and Termarust blamed each other for the deficiencies in inspection reports. Both companies indicated they would not assume responsibility for repairs until the cause of the problem was determined.

In 2013, the city sued Clara Industrial and others involved in the project. In its statement of claim, the city sought an estimated $10 million in loss or damage, plus special damages of $250,000 associated with investigating the paint failure.

In 2018, Clara Industrial sought to have the case dismissed due to procedural delays. In June 2023, Court of King's Bench Justice Kent Teskey allowed the appeal, dismissing the city's case against Clara Industrial. 

Teskey found that significant delays in advancing the case — and missed steps in the legal proceedings — may have resulted in the loss of critical evidence and documentation.

The judge expressed concern over the absence of records, given that "memories fade and documents may be lost." He noted that limited exchanges of documents between the parties meant that there "has literally been no preservation of evidence at all."

Teskey also expressed concern that paint samples from the bridge may have deteriorated and key expert witnesses who were closely involved in the project have since died. 

In the judgment issued late last month, the Court of Appeal upheld Teskey's dismissal, finding that the city's significant delays in advancing the case had prejudiced the proceedings against Clara Industrial.

The three-judge panel determined that the lower court justice made no legal errors in determining that the case should not proceed. The judges found the delay was inordinate and inexcusable and that the resulting prejudice to the respondent was significant.

Teskey had ruled that the litigation by the city had "not left the starting gates." The appeal court found that his decision to dismiss the action for those procedural delays was reasonable.

Clara Industrial declined to comment.

The two bridges were built 48 years apart. Both are in need of repairs, but the project has faced delays and cost overruns.

The work, originally budgeted at around $1.5 million, is now expected to cost around $5 million.

Design for rehabilitation of the northbound structure is underway, with construction expected to begin in 2026. The work will keep the bridge operational until its southbound twin is eventually decommissioned.

Rehabilitation of the southbound bridge is scheduled for this year. The work will include replacement and strengthening of bridge components but will not include repainting, the city said.