Executive Summary: Key Legal and Evidentiary Issues

• Characterization of the municipal construction contract as a modified lump-sum (prix forfaitaire relatif) and the effect of clauses allowing the City to change the work, pricing and schedule.
• Disputes over whether numerous change directives (DC) and extra-work claims (TS) were truly “travaux supplémentaires” or already included in the original scope, and whether Urbex’s pricing complied with the contractual method (cost plus 12% administration and profit).
• Allocation of responsibility for construction delays, including Urbex’s burden to prove impact on the critical path without a proper baseline schedule and the City’s limited acknowledgment of compensable extension days.
• Interpretation of retention and set-off provisions, particularly the City’s attempt to withhold contractual retainage based on unpleaded delay penalties versus the Civil Code’s requirements for judicial liquidation of such claims.
• Apportionment of liability where defective plans and specifications by the City intersected with Urbex’s own execution errors or non-conforming methods, especially regarding the remodelled play-area “bosses” and drainage.
• Limited recovery of claim-preparation costs, grounded in whether the City’s handling of Urbex’s claims (including late partial concessions during trial) constituted a fault causing additional, foreseeable loss.

Background and contractual framework
Construction Urbex inc. successfully bid on a 2016 public tender by the Ville de Montréal to construct and refurbish three play areas and related works in Parc de La Fontaine on Île-des-Sœurs. The lump-sum contract price was about $413,511 plus a contingency of $41,351.10, within a total bid of $454,862.10 before tax. Early on, Urbex discovered it had made a major pricing error on specialized synthetic turf (budgeting $80,000 but including only $8,000 in the added total), leaving an internal shortfall of roughly $72,000—about 15% of the contract—before work began. The City noticed the abnormally low price at tender opening and offered Urbex a choice: cancel the contract by forfeiting its bid bond (around $45,000), or proceed at the tendered price. Urbex chose to proceed and later regretted the decision. The project encompassed three distinct areas: a pétanque area; a toddlers’ area for ages 18 months to 5 years; and an older children’s cable-play area for ages 6 to 12, plus an exterior table-tennis installation. Work on the pétanque area in autumn 2016 proceeded smoothly and without dispute. The more complex disputes arose during the 2017 resumption of work on the two play areas with play equipment and synthetic surfaces, where design issues, site conditions and sequencing problems prompted numerous change directives and extra-work claims.

Key contractual clauses and legal framework
The contract was a municipal construction agreement at a relative lump sum. It expressly allowed the City, through its project director, to modify the work and execution conditions at any time. When modifications changed the nature or quantity of the work, pricing had to follow specified methods: using unit prices in the bid form, an agreed lump sum, or if no agreement, controlled-cost pricing—actual labour at decree wage rates, cost of materials, agreed rates for equipment, plus 12% for administration and profit. For schedule impacts, the contract fixed a daily compensation amount for prolongation of the works due to City-ordered changes; for this project the agreed rate was $475.30 per added calendar day. The contract also required Urbex to submit a detailed schedule showing sequencing, crews and locations, and expressly made the 87-day completion deadline “of the essence.” Under Quebec civil law, this made compliance with the contractual duration an obligation of result, placing the burden on Urbex to show that any delay was attributable to the City or to force majeure and that it affected the project’s critical path. The court emphasized that without a comprehensive critical-path schedule for the full contract (Urbex only produced a three-week spring 2017 schedule), it is significantly harder to prove schedule impact. Finally, the contract provided for a 10% holdback, to be released half at substantial completion and half at final acceptance after one year, and included a clause allowing the City to retain sums and operate set-off for “any sums” the contractor might owe the City, including against the holdback. The City later relied on that clause to justify withholding, citing delay penalties it had unilaterally calculated but never formally claimed in court.

Project participants and supervision
On Urbex’s side, its president and principal shareholder, Marc-André Bastien, prepared the bid and was frequently on site. A project manager, Christian Bissonnette, managed the work on the two play areas from spring 2017. For the City, landscape architect Lise Roy was the project director: she designed the concept, prepared the tender documents, issued change directives, decided on extra-work claims and approved payments. She reported to her superior Jean Cardin, who intervened occasionally. Site inspection and daily reporting were handled by engineer Bonzil Noël of consulting firm Groupe ABS, who monitored technical, environmental and health and safety compliance and produced daily site reports that became central evidentiary documents for the court’s assessment of delay and productivity.

Disputed changes, extras and credits
Dozens of specific items were litigated, structured around City-issued directives de changement (DC) and Urbex’s demandes de travaux supplémentaires (TS). The judge analyzed each claim on two axes: (1) whether the work was truly extra or already included in the original contract scope; and (2) whether, and to what extent, it caused a compensable extension of the contract time under the daily rate clause. On pricing, the court repeatedly enforced the contractual approach of cost plus 12% overhead and profit. Urbex sometimes substituted hourly “project manager” billing instead of applying the 12% uplift; in those instances, the court either disallowed the excess over the contractually proper pricing or accepted the City’s partial payment as correctly computed on a strict contract basis. Many items of alleged “extra work” were dismissed on the basis that they were clearly part of the original obligations: for example, removing all fastening hardware when stripping old bench boards from a concrete wall, cleaning and maintaining site cleanliness, or performing contractually mandated surveying and setting out. In each such case the court held that the work was not extra, so no additional compensation or delay damages were available.

Examples of extra work allowed in principle
Some change directives and extra-work claims were accepted in whole or in part. Examples include:

• Enlarging a concrete pad to carry an outdoor table-tennis table, where the City had requested a larger slab than originally specified and ultimately accepted Urbex’s revised price. The court ordered the City to pay the small unpaid balance and rejected a grossly inflated 21-day delay claim, finding that real work had continued in parallel.
• Modifying landscaping and replacing hydroseeding with shrubs and sod, where the City had wrongly credited itself for topsoil that in fact was still needed under the new arrangement; Urbex recovered the wrongly deducted amount but not the full delay it asserted.
• Demolishing and rebuilding a defective existing concrete panel near the table-tennis area that plans had shown as “to remain.” Even though the City verbally rejected Urbex’s quoted price after the work had effectively been done in conjunction with other concrete pours, the court treated the City’s directive and benefit from the new work as sufficient to entitle Urbex to its claimed price, plus a modest half-day time extension.
• Reconstruction of a small section of deteriorated sidewalk that plans had originally shown as being conserved. Urbex cast it with other concrete placements to avoid mobilizing later; again, the court enforced the accepted revised price, adjusted for proper application of the 12% markup, and granted a minimal delay equal to the actual work time for that item.
• Replacement of an unavailable specified coating system for the perimeter concrete wall: the specified Nano bond and Walltools products were discontinued, and the substitute (Sika) did not provide the contractually required uniform finish, forcing Urbex to apply an additional Texnov coating layer. Because the extra layer was necessary to meet the City’s own specification and arose from product unavailability outside Urbex’s control, the court treated it as compensable extra work and allowed both the cost of the Texnov works and one full day of associated delay.

Design errors and shared responsibility in the remodelled play area
The most significant and complex dispute concerned the six-to-twelve-year-olds’ cable play structure area and its sculpted “bosses” (mounds) and protective synthetic surfacing. The City’s plans specified detailed ground relief profiles and an associated safety surfacing build-up. Urbex initially shaped the ground in conformity with those designs. However, when the specialized play and surfacing subcontractors attempted to install the equipment and protective layers, they found that the designed slopes were too steep and aggressive to meet the manufacturer’s safety requirements. The area had to be reprofiled and the surfacing system adjusted. The court held that the need for substantial rework stemmed primarily from errors in the City’s plans and specifications, entitling Urbex to compensation for extra work and delay in principle. At the same time, Urbex’s own decisions exacerbated the problem. In late June 2017, it unilaterally flattened the entire area in an attempt to avoid installing a more complex rubber underlayment, aiming instead to use cheaper, more standard panels. This non-conforming approach conflicted with the City’s design intent and was rejected, necessitating yet more corrective work. The judge therefore apportioned responsibility: the City bore fault for defective plans and the initial need to redo the “bosses,” but Urbex bore equal fault for non-conforming rework that had to be undone. Accordingly, Urbex recovered only half of the outstanding extra-work amount it still claimed for this component and received a net schedule extension of 10 days for this issue (1.78 days already acknowledged by the City plus an additional 8.22 days awarded by the court), reflecting the interplay of both parties’ errors.

Delays, critical path, and rejected schedule claims
Across nearly all TS items, Urbex sought very substantial delay compensation, at times claiming that every negotiation period or issue-identification window translated directly into lost critical-path days. The court consistently rejected that global approach. It stressed that Urbex carried the burden to prove that a particular change affected the critical path and that nothing else meaningful could be done on site in the meantime. The daily site reports from Noël were decisive: they showed that during many periods for which Urbex claimed standstill, work was in fact proceeding on multiple fronts, including on the other play area. The court also noted that Urbex had failed to provide a detailed baseline critical-path schedule for the entire contract duration, even though this was a contractual requirement and a recognized best-practice tool. Without such an instrument, Urbex’s generalized assertions of disruption and lost productivity were largely unsupported. Only in a few cases—such as the extensive re-profiling of the bosses and the discovery of buried old concrete bases that required removal—did the court find clear evidence that work in a given area could not reasonably progress and that there was a direct causal link between the change and overall completion timing. There, limited additional days of compensable delay were awarded at the contractual daily rate.

City’s attempts to deny or minimize extras
In several instances the City attempted to deny the existence of extra work by characterizing changes as simply different execution methods within Urbex’s original obligations. For example, when demolished concrete slabs eliminated the original anchoring surface for synthetic turf, Urbex proposed new timber borders and anchoring solutions, and the City requested prices. Where the City requested a specific new method (like adding 4”x4” wood borders over a defined length) and allowed the work to be performed to its satisfaction, the court held that it could not later refuse to pay purely on the argument that a cheaper method might have existed. In such cases, the City’s conduct—issuing a change directive, inviting a price and accepting the benefit of the work—was treated as an implicit agreement that the work was outside the original scope. Conversely, where the contract clearly allocated responsibility to Urbex (e.g., for supplying sufficient 2”x6” lumber once it was apparent the turf would be anchored to wood instead of concrete), the court rejected efforts to pass costs or delays arising from material shortages onto the City.

Retention money, penalties and interest
A significant legal issue arose around the City’s refusal to release the first half of the contractual 10% holdback at provisional acceptance in September 2018. The City claimed it was entitled to unilaterally set off a liquidated delay penalty of $27,000 against the holdback, relying on a contractual clause allowing it to retain sums and operate compensation for sums allegedly owed to it. However, the City had not filed any counterclaim for the penalty or sought judicial determination of Urbex’s liability for it. Relying on article 1673 of the Civil Code of Québec and appellate guidance, the judge held that where the City wants to oppose an unliquidated claim in compensation, it must obtain judicial liquidation through a counterclaim. Since it had not done so, it could not be both “judge and party” on its own penalty claim. The clause did, however, protect the City from owing interest on the retained amount during the period when it could reasonably hold the funds pending potential set-off. Once it became clear—at the time of the joint filing for trial readiness in March 2023—that the City would not pursue any counterclaim, it lost any justification for continuing to withhold the holdback. The court therefore ordered payment of the first half of the holdback, with interest running from that March 2023 date, and separately awarded interest on the second half of the holdback, which had been paid late (only in May 2023, despite being due at final acceptance in September 2019).

Claim-preparation costs and moral damages
Urbex claimed over $22,000 for internal time spent preparing its detailed claim, along with $15,000 in moral damages for stress and inconvenience. The court rejected the moral damages claim outright for lack of evidence. On claim-preparation costs, the court applied article 1613 C.C.Q. and case law indicating such costs are only exceptionally recoverable when clearly caused by the other party’s fault in administering the contract or handling the claim. While Urbex was obliged in any event to marshal evidence for its claims, the court found that the City had not examined Urbex’s submissions with sufficient seriousness before trial. The City’s very late concessions during trial—recognizing and paying a significant number of items only once the hearing was underway—showed that proper earlier analysis would have shortened both the claim-preparation and the trial itself. That negligence justified a modest, not full, contribution to Urbex’s claim-preparation effort, and the judge awarded $2,000 on this head, with interest from filing of the action.

Outcome and total monetary award
Globally, the court found that both parties bore some responsibility for the project’s difficulties. Urbex succeeded on many discrete extra-work items and on part of its delay claim, but failed on a substantial number of other alleged extras and on the bulk of its asserted time extensions. The City, for its part, was faulted for defective design of the bosses and related surfacing, for mishandling holdback and penalty issues, and for not engaging seriously enough with Urbex’s claims until trial. In the result, the court held that Construction Urbex inc. was the successful party. The Ville de Montréal was ordered to pay Urbex: (1) $18,398.85 plus taxes; (2) $6,853.83 (non-taxable); (3) $22,311.42 plus taxes (first half of the holdback); (4) $5,119.88 (interest on the late second half of the holdback); and (5) $2,000 for partial claim-preparation costs, each amount bearing legal interest and the additional indemnity from specified dates, together with costs. In principal amounts alone this totals $54,683.98, to which must be added applicable taxes on the taxable portions, legal interest, the statutory additional indemnity and party-and-party costs; the precise final all-in monetary figure (including interest and costs) cannot be determined from the judgment text itself.