Executive Summary: Key Legal and Evidentiary Issues

• Scope and limits of pre-trial oral examination of a third party (the supervising engineer) under Québec’s simplified procedure rules.
• Application of the proportionality principle to restrict additional discovery in a relatively straightforward construction delay and penalty dispute.
• Assessment of whether information sought from the engineer is already available or obtainable from the City of Montréal through existing undertakings.
• Evaluation of the necessity of a third-party examination to prove the contractor’s case on delay attribution and the lawfulness of liquidated penalties.
• Impact of outstanding documentary undertakings on the timing and prematurity of a motion to examine a third party.
• Treatment of legal costs following the denial of a procedural motion and the absence of any quantified monetary award at this stage.

Background and contractual framework

Les Excavations Super inc. is a civil engineering and excavation contractor specializing in water systems, sewer networks, excavation and grading work. It successfully bid on a public call for tenders issued by the Ville de Montréal to carry out development and electrical work at Place Boyer. The contract price was approximately CAD 2.83 million, with a contractual completion period of 120 days. The City mandated IGF Axiom, through project engineer Jean Willer Casimir, to supervise execution of the work and to manage communications and follow-up with the City throughout the project. While the overall works were eventually completed, they were not finished within the contractual time limits. This delay is at the heart of the dispute between the parties. Relying on the delay provisions in the contract and its general conditions, Montréal withheld CAD 77,192.28 from the final payment as daily delay penalties representing 33 days of alleged delay. Excavations Super maintains that the City’s retention is without legal or contractual basis and claims payment of the withheld sum. It alleges that the various delays were caused by disruptions attributable either to Montréal itself or to IGF Axiom’s subcontractors, and therefore that the penalties ought not to have been applied.

Positions of the parties on delay and penalties

Excavations Super’s position is that responsibility for delay lies with Montréal and IGF Axiom rather than with the contractor. It asserts that it provided notices and information to the supervising firm during the project to justify additional time, and that its delays were produced by design issues, missing details, and approval timelines beyond its control. From its perspective, the City’s decision to impose daily penalty charges at the end of the project does not reflect the actual causes of delay or the contractual mechanisms for adjusting deadlines. Montréal, for its part, invokes strict adherence to the contractual procedure for modifying deadlines. It argues that Excavations Super failed to comply with the required process for seeking time extensions and did not demonstrate the causes of delay in a timely manner during the project. Montréal also points to partial non-conformity in the work, which led only to a partial provisional acceptance of the works in December 2024 rather than full reception. In its view, this partial acceptance did not stop the running of delay penalties, and it was duly entitled to continue applying them until compliance was achieved.

Procedural context and simplified rules

The judgment is not on the merits of the contractor’s claim for the unpaid amount; it addresses a specific procedural motion. The action was instituted under the simplified procedure regime in the Québec Code of Civil Procedure, applicable where the amount in dispute meets certain thresholds. Under this regime, the legislator has limited the number of pre-trial oral examinations to streamline proceedings and reinforce the principle of proportionality. As a rule, in monetary claims meeting the threshold, each party is entitled to a single oral examination before trial, unless the court exercises its discretion to authorize more. The court emphasizes that an oral examination of a third party (as opposed to a party representative) is exceptional. The normal rule is that witnesses should be heard at trial, not in advance. Authorization to examine a third party, when not consented to by the third party and the adverse party, must be granted by the court, which will define the conditions and scope. In deciding whether to authorize such an examination, the court applies criteria relating to the relevance of the facts sought, the witness’s ability to provide them, the unavailability of the information from the other party, the necessity of the examination for the progress of the case, and overall consistency with the principles of proportionality and sound case management.

The request to examine the supervising engineer

Excavations Super had already used its right to examine an adverse party representative by examining Ms. Vania Rodriguez, the City’s landscape architect responsible for the project. During that examination, the contractor claims Ms. Rodriguez could not explain why the requested extensions were refused, why certain dates were used in the engineer’s analysis of completion, or what documentation had been transmitted by Excavations Super to IGF Axiom to justify the delays. She indicated that on these points she relied on engineer Jean Willer Casimir’s analysis. Several objections based on professional secrecy were also made in relation to communications between Montréal and IGF Axiom. Against this backdrop, Excavations Super sought leave from the court to examine Mr. Casimir as a third party. It argued that the engineer had made the recommendations concerning the application of delay penalties and that only he could explain his analysis and the criteria used to conclude that the contractual procedure for changing deadlines had not been complied with. The proposed topics for examination included the notices and information sent to IGF Axiom, the timelines for approvals, additional delays granted after the provisional reception in December 2024, incomplete design issues, the decision to apply penalties, the provisional acceptance of the works, and IGF Axiom’s contract administration.

Evidentiary undertakings and proportionality assessment

The City opposed the motion, characterizing the requested third-party examination as unnecessary, premature, and disproportionate relative to the amount in dispute and the simplified nature of the procedure. Montréal also raised a technical objection that the supporting sworn declaration should have been signed by a representative of the plaintiff rather than by its counsel. In its analysis, the court accepted that the subjects Excavations Super wished to address with Mr. Casimir were relevant to the dispute and that he was indeed the person responsible for managing the work and communications, including recommendations on delays and penalties. However, the court underlined that Ms. Rodriguez had testified that she was informed of all delays and that all requests for extensions were transmitted to her. Importantly, during her examination, a series of formal undertakings were given by Montréal to provide documents and details regarding the requests for delays, the material submitted by Excavations Super, the supporting documentation for the penalized days, and the application of penalties. Many of these undertakings remained outstanding when the motion to examine Mr. Casimir was presented. The judge considered that these documentary undertakings, once fulfilled, should supply much of the information the contractor sought, including the basis for the City’s decision on delays and penalties. The court stressed that pre-trial examinations of third parties are a tool to clarify issues and evidence, but they are not an unlimited right. The moving party must show that, without such an examination, it cannot adequately present its case or defense. At this stage, with key documents still to be produced, Excavations Super had not shown that it would be unable to prove its case without questioning the engineer in advance of trial.

Ruling on the motion and outcome

The court ultimately concluded that authorizing a third-party examination of Mr. Casimir at this time would not be necessary or proportionate. The dispute itself was characterized as relatively simple: whether Montréal was justified in imposing delay penalties, a question that will turn on whether time extension requests were made in due course and whether the delays are attributable to the contractor. Many of the facts needed to resolve these issues either were already in Excavations Super’s possession or should become available once Montréal fulfilled its undertakings from Ms. Rodriguez’s examination. Authorizing the additional examination would also jeopardize the scheduling of the upcoming mandatory settlement conference, which the parties acknowledged would be impossible to hold if the engineer’s examination proceeded immediately. The court therefore dismissed Excavations Super’s motion for permission to examine the third-party engineer and awarded costs of the motion against it in favor of the Ville de Montréal. Montréal is thus the successful party in this decision, but the judgment does not quantify the costs or any other monetary award; the exact amount of costs or compensation ordered in its favor cannot be determined from the decision.