By Mike Lewis
Special to Ontario Construction Report
The president of Amalgamated Transit Union Canada says a legal fight between provincial transit agency Metrolinx and the consortium building Toronto’s Eglinton Crosstown Light Rapid Transit line underscores the pitfalls of public-private partnerships on major infrastructure projects.
“Any time governments, not just in Canada but internationally have gone to the partnerships in the development of public infrastructure it always appears cheaper in the short run,” said John Di Nino, whose union represents TTC workers.
“But history has shown us that the cost overruns and the expense of operating these things are far greater that the cost of investing in yourself,” he said in an interview.
He added that public transit expansion work that is “proprietary to the transit union members” under collective agreements is being contracted out to private construction groups, which, along with project delays, “is impacting our ability to put frontline workers out there. I don’t see why we wouldn’t be able to partner.”
Di Nino made the comments after Metrolinx CEO Phil Verster in a statement Tuesday said Crosslinx Transit Solutions, the consortium of design and construction companies building the Eglinton Crosstown LRT, has informed the agency of its intention to sue Metrolinx and stop working with the TTC, which will be responsible for operating the line when it’s up and running.
Verster said the litigation will be conducted parallel to ongoing construction and testing work although he confirmed that 2024 will be the earliest the Eglinton LRT will be in service rather than this year as had most recently been expected.
“There are lessons here that we should have learned by now,” Di Nino said. “It’s been nearly 13 years (since the first phase of construction began in 2011 on the 19-kilometre Eglinton Crosstown LRT.) “I understand there can be unexpected delays, but this is ridiculous.”
He said instead of outsourcing public transit projects to various external vendors who can walk away if they can’t meet their profit margin targets, projects to develop transit and other public infrastructure assets should be kept within the public realm with work done “in house.”
Governments turn to private partners to accelerate large projects by providing access to capital and expertise while sharing risks and rewards. But the partnerships have also been criticized for delays and cost overruns and operating issues including derailments on Ottawa’s LRT, a system being developed through a public-private partnership.
Verster, meanwhile, called the CTS legal manoeuvre “another unacceptable delay tactic at a time when they should be submitting a credible schedule to Metrolinx for completing the project. While Metrolinx is driving and supporting CTS to complete the project, CTS is looking for new ways to make financial claims.” He called the lawsuit “a distraction.
“CTS’s behaviour continues to be disappointing, especially for our Toronto communities who have been waiting patiently for the completion of this project,” Verster added.
Awarded a $9.1 billion contract to build and maintain the Eglinton Crosstown in 2015, the CTS consortium comprised of ACS-Dragados, Aecon, EllisDon and SNC-Lavalin in a statement said it submitted a notice of application due to Metrolinx’s “failure” to retain an operator for the Eglinton Crosstown LRT.
“CTS has been forced to take this step after months of engagement with Metrolinx about the challenges to the project as a result of Metrolinx having no signed operating agreement with the TTC (despite having a decade to do so),” vice-president of communications for CTS, Susan Sperling, said in the statement.
“The notice asks the court to find that Metrolinx has an obligation to enter into a contract (operating agreement) with the TTC as the intended operator of the Eglinton Crosstown LRT and bind the TTC to a contract consistent with CTS’ contract.”
She said the action “seeks to remove existing barriers to completion so that we can get this project opened to the public as soon as possible.
“At present, CTS has not suspended or stopped any work on the project despite Metrolinx’s continued refusal to recognize the impact of it’s failure to properly manage its own contractors under the project agreement,” Sperling said.
But until the issues are resolved, CTS has asked the court to find it is not “obligated to continue working” on the project.
“It is not tenable for CTS to continue working towards shifting standards, requirements, and goalposts of project completion,” Sperling said.
Last month, Ontario Transportation Minister Caroline Mulroney said CTS has failed to produce a “credible schedule” for the line’s completion.
Verster said Metrolinx is looking for “a schedule that describes how they will complete the testing, commissioning, safety and quality rectifications of the rail line.”
Toronto Deputy Mayor Jennifer McKelvie said in a statement that she is “extremely frustrated” with the issues around the project and called on Premier Doug Ford to call a roundtable of stakeholders to find a solution.
“We want to see this resolved in a boardroom not a courtroom. People need to come together, solve the problems plaguing this provincial project and get this very important transit line open,” she said.
A spokesperson for the TTC, meanwhile, said the legal matter is between Crosslinx and Metrolinx, and not the TTC.
“We have not been notified of any legal action against us at this time,” spokesperson Stuart Green said in an email Tuesday.
“The TTC continues to work with Metrolinx and CTS to start operating Line 5, Eglinton Crosstown as soon as possible,” he said.
“We are ready to begin operator training as soon as construction is completed to a level that safely allows us to do so.”