BLG CANADA : PROVINCE OF QUEBEC District of Montréal File No. SUPERIOR COURT Civil Division _ - SIGNATURE ON THE SAINT LAURENT GROUPG.P., a general _ partnership established under the laws of Québec, domiciled at 300-8 Place du Commerce, Montreal, Quebec H3E 1N3 and SIGNATURE ON THE SAINT LAWRENCE CONSTRUCTION G.P., a general partnership established under the laws of Québec, domiciled at 300-8 Place du Commerce, Montreal, Quebec H3E 1N3 Plaintiffs vs. HER MAJESTY THE QUEEN IN RIGHT OF CANADA, tepresented by the Minister of Public Works and Government Services, New Bridge for the St. Lawrence Corridor Project, 10" Floor, 10-011, 180 Kent Street, Ottawa, Ontario K1A 0S5 and ATTORNEY GENERAL CANADA, Quebec Regional Office, Department of Justice Canada, Guy-Favreau Complex, East tower, 9"" Floor, 200 René-Lévesque Boulevard West, Montréal, Quebec H2Z 1x4 Defendants JUDICIAL APPLICATION ORIGINATING A PROCEEDING (Art. 141 and following CCP)-2- Table of Contents Page PART I: PARTIES, SUMMARY OF THE DISPUTE AND ISSUES IN DISPUTE ... A. The Parties and the Relevant Authorities B. Summary of the Dispute C. Issues in Dispute ——— PART II: CONTRACTUAL RELATIONSHIP... we & A. The Request For Proposals and the Disclosed Data se? B. The July 2014 Constructability Report... a 8 C. The Private Partner's February 2015 Technical Proposal. . 10 D. The April 2015 Selection Process and Information Disclosed to the Authority.......12 E, The June 2015 Contracts. F. The July 2015 Watson Report PART Ill: CONTRACTUAL ENTITLEMENTS A. Supervening Events B. Works Change in Law. PART IV: DISPUTE RESOLUTION PROCEDURE. PART V: COMPENSATION, EXTENSION OF TIME, RELIEF AND LIQUIDATED DAMAGES A. The Technical and Financial Impact of these Unforeseeable Events ..... 34 B. The Categories of Costs Impacted by the Unforeseen Events 20) C. Extension of Time...... D. _Liquidated Damages PART VI: CONCLUSIONS ..IN SUPPORT OF THEIR JUDICIAL APPLICATION ORIGINATING A PROCEEDING, PLAINTIFFS RESPECTFULLY ALLEGE THE FOLLOWING: PART |: PARTIES, SUMMARY OF THE DISPUTE AND ISSUES IN DISPUTE* A 1 The Parties and the Relevant Authorities Plaintiff Signature on the Saint-Laurent Group G.P. is a general partnership established under the laws of Quebec consisting of ACS SSLG Partner Inc. HOCHTIEF SSLG Partner Inc. and SNC-Lavalin GSSL Associé Inc. (the “Private Partner’), constituted to design, construct, finance and maintain the New Bridge for the St. Lawrence, as appears from an excerpt from the Registre des entreprises du Québec, communicated in support hereof as Exhibit P-1; Plaintiff Signature on the Saint-Lawrence Construction G.P. is a general partnership established under the laws of Quebec consisting of SNC-Lavalin Major Projects Inc., Dragados Canada, Inc., Flatiron Constructors Canada Limited and EBC Inc. (the “Construction Contractor’), specialized in engineering and construction works and services, as appears from an excerpt from the Registre des entreprises du Québec, communicated in support hereof as Exhibit P-2; Defendant Her Majesty the Queen in Right of Canada is the Government of Canada, represented either by the Minister of Public Works and Government Services Canada (acting through Public Works and Government Services Canada), by the Queen’s Privy Council for Canada, or by the Minister of Infrastructure, Communities and Minister's Office, acting through Infrastructure Canada (collectively, the “Authority’); The ministére des Transports du Québec, now referred to as the ministére des Transports, de la Mobilité Durable et de I'Electrification des Transports (the “MTMDET’), is a government-controlled entity, whose mission is to ensure the sustainable mobility of people and goods throughout the province of Quebec, as appears from an excerpt of its website, communicated in support hereof as Exhibit P-3; The Jacques Cartier and Champlain Bridges Incorporated ("JCCBI’) is a crown corporation whose mandate is to manage and maintain several federal structures, in the region of Montreal, including the Champlain Bridge, as appears from an excerpt of JCCBI's website, communicated in support hereof as Exhibit P-4; * The terms that are not otherwise defined herein have the meaning provided for them in the Project Agreement, Schedule 1: Definitions and Interpretation (Exhibit P-8).. meee10, 1 12, BLG Summary of the Dispute On October 5, 2014, the Authority confirmed its intention to proceed with the replacement of the existing Champlain Bridge by the New Bridge for the St. Lawrence (the "NBSL or the *Project’); The Project consists of the construction of the new 3.4-kilometre bridge spanning the Saint Lawrence river, a new 470-metre bridge for Ille-des-Sceurs, the widening of Highway 15 between the Atwater interchange and the NBSL and the improvement of the access and exit ramps leading from Highways 132 and 10 on the South Shore to the Champlain Bridge; In April 2018, following a public procurement process more fully described hereafter, the Authority awarded the contract to the Private Partner to design, construct, finance, operate, maintain and rehabilitate the NBSL; A Project Agreement was subsequently entered into and signed between the Private Partner and the Authority and a Construction Contract was also entered into and signed between the Private Partner and the Construction Contractor, both on June 16, 2015 (collectively the “Project Agreement’); Following the signing of the Project Agreement and the Construction Contract, with the NBSL’s design substantially completed and offsite manufacture and production of its pre-cast concrete and structural steel elements by third party suppliers in progress, the Private Partner and the Construction Contractor were notified by both Federal and Provincial authorities that the access to and the use of the Champlain Bridge as well as provincial roads, in and around Montreal, for the transportation of the bridge’s elements had been significantly restricted In fact, as of May and October 2016, JCCBI has prohibited vehicles that require a Class 5, Class 6 or Class 7 (on a case by case basis) permit (according to the rating of the Société de [assurance automobile du Québec, hereafter the “SAAQ") from crossing the Champlain Bridge. In essence, these restrictions now limit use of the Champlain Bridge to loads with a maximum weight of 30 Metric Tons (‘MT"); In addition, the Private Partner and the Construction Contractor were informed by MTMDET representatives during a meeting held on June 8, 2016 that, during the Request For Proposals (the "RFP”) phase of the Authority's procurement of the Project and before the contractual Commencement Date, the Authority had, on two occasions, received written confirmation from the MTMDET that it had imposed, a weight limitation of 65 MT on the Project for the transportation of the various prefabricated elements of the NBSL over the Quebec road network (the “MTMDET Letters");13, 14 15. 16, 17. 18. 19, 20. Despite their obvious importance to all proponents, who were then developing their respective proposals for the Project, neither the MTMDET Letters nor their contents were disclosed by the Authority to the Private Partner or the Construction Contractor during the RFP (Contract “A"), the whole in violation of the Authority's legal and contractual obligations to act in good faith and to ensure a fair and transparent public procurement process; Moreover, neither were the MTMDET Letters nor their contents disclosed by the Authority to the Private Partner or the Construction Contractor in a timely or judicious manner, following the signing of the Project Agreement (Contract “B"); In fact, they were only disclosed to the Private Partner on July 28, 2016, more than 13 months after the Project Agreement was signed and, as the Authority was aware, as the design of the NBSL was substantially advanced, and only following the Private Partner's numerous requests to compel the Federal and Provincial authorities to disclose copies of the letters; These restrictions have obliged the Private Partner and the Construction Contractor to identify alternate transportation solutions for the NBSL’s pre-cast concrete and structural steel elements resulting in substantial cost and scheduling issues detailed hereafter; They have also required the Private Partner and the Construction Contractor to implement measures to mitigate the cost and schedule impacts that these events have caused and continue to cause as the Project progresses; Issues in Dispute Pursuant to the terms of the Project Agreement, the Private Partner and the Construction Contractor notified the Authority that the facts and restrictions described herein constitute Supervening Events and a Works Change in Law, as defined in the Project Agreement; ‘As more fully set out hereafter, the Authority contested the Private Partner's position and the issues were, as a result, submitted to the Standing Committee pursuant to the Dispute Resolution Procedure of Schedule 26 of the Project Agreement; ‘As contemplated by the terms of the Dispute Resolution Procedure, the Private Partner and the Construction Contractor now refer the following issues to the Court for resolution: 1, Supervening Event SE-012 (1) Did the Authority violate its obligations to act in good faith, to treat the proponents equitably and fairly as well as to collaborate with theI M Private Partner and the Construction Contractor by either failing, choosing not to or neglecting to disclose the MTMDET Letters or the information contained therein to them during the RFP (Contract“A’) and after the date of the Project Agreement (Contract “B")? Is the Authority's failure to communicate in a judicious fashion to the Private Partner and the Construction Contractor, during the RFP (Contract “A’) and after the date of the Project Agreement (Contract "B’), the imposition by the MTMDET of a weight limitation of 65 MT for the transportation of the precast elements of the Project over the Quebec road network, despite the Authority's knowledge of same following its receipt of the MTMDET Letters in March and April 2015, a Supervening Event, as defined in the Project Agreement? If so, to which compensation, extension of time and relief are the Private Partner and the Construction Contractor entitled to? Supervening Event SE-011 (1) (3) Did the Authority violate its obligations to act in good faith as well as to collaborate with the Private Partner and the Construction Contractor by either failing to, choosing not to or neglecting to disclose JCCBI's restrictions pertaining to the transport of oversize loads over the Champlain Bridge during the RFP (Contract “A") and after the date of the Project Agreement (Contract "B")? Is the Authority's failure to communicate in a judicious fashion to the Private Partner and the Construction Contractor the weight limitations imposed by JCCBI in 2016 prohibiting the transport of any oversize loads over the Champlain Bridge, regardless of the transport configuration (heavy vehicles that fall under a permit Class 5, Class6 or Class 7 (on a case by case basis), a Supervéning Event, as defined in the Project Agreement? If so, to which compensation, extension of time and relief are the Private Partner and the Construction Contractor entitled to? Works Change in Law WCIL-01: (1) Do the new and restrictive weight limitations imposed by JCCBI first in May, 2016 prohibiting heavy vehicles that fall under a Class 6 or a Class7 permit (on a case by case basis) as per rating of the SAAQ (gross vehicle weight of 79MT which equates to 48 MT loads approximately) as well as JCCBI's further restriction commencing in September 2016 prohibiting heavy vehicles that fall under a Class 5 permit as per rating of the SAAQ (gross vehicle weight of 43.5 MT which equates to 30 MT loads approximately) from crossing the Champlain Bridge, constitute a Works Change in Law, as defined in the Project Agreement?<7. (2) If so, to which compensation, extension of time and relief are the Private Partner and the Construction Contractor entitled to? PART Il: CONTRACTUAL RELATIONSHIP. A. The Request For Proposals and the Disclosed Data 21. The Authority opted for a comprehensive and stepped process to procure the design, construction, financing, operation, maintenance and rehabilitation of the Project which included (@) Issuing on March 17,2014 a Request for Qualifications whereby the Authority would qualify three proponents followed by; (b) On July21,2014, an RFP, pursuant to which the three qualified proponents ‘were invited to submit their respective proposals which ultimately, following the Authority's analysis of the individual proposals, would lead to the selection of a successful proponent for the Project and the signing of a Project Agreement; 22. The key dates of the RFP process were as follows: (a) _ Issuance of the Request for Proposals July 24, 2014 (b) End of the Enquiry period regarding the Technical J 1 Proposal January 16, 2015 (c) Deadline for submitting the Technical Proposal. February 11, 2015 (d) Reference Date: March 18, 2015 (©) End of the Enquiry period regarding the Financial arch 25, 2015 Proposal (f) Deadline for submitting the Financial Proposal April 1, 2015 (@) Selection of proponent for the Project Agreement: Apri 15, 2018 (h) Project Agreement signing and Financial Closing June 16, 2015 (Commencement Date) 23. The RFP required that the Authority provide the three qualified proponents, via an electronic database known as “Firmex’, access to the Authority's. information and documentation to allow the qualified proponents to prepare their respective proposals; _BLG24, 25 26. 27. 28. BLS -8- The intent of the RFP's structure and process was to foster and facilitate the full disclosure and exchange of all relevant information to ensure that the Authority obtained realistic and sound proposals; It is in that context that, on July 31, 2014, the Authority disclosed via Firmex to the proponents a report prepared for Infrastructure Canada titled “NBSL Corridor Project Constructability Report to Infrastructure Canada’ (the “Constructability Report’), as appears from the Constructability Report, communicated in support hereof as Exhibit P-5; The July 2014 Constructability Report The Constructability Report's stated principal objective was to ‘identify potential constructability issues that could affect the Project, including those relating fo transportation” The Constructability Report identifies construction methods and the access routes which would be available to the successful proponent during and for the purposes of the Project (a) It identified and detailed potential constraints and restrictions for heavy vehicle traffic on specific infrastructures, including potential challenges relating to snow chutes and traffic management; and (b) It also specified situations where consultation with stakeholders and the Relevant Authorities was required; The Constructability Report also set out the Authority's construction philosophy/strategy envisaged for the Project, including: (a) Minimise In-Water Works. In order to minimize the amount of in-water works, it envisaged that a significant amount of prefabrication and pre-casting would take place in offsite controlled environments which offered additional benefits such as accelerated construction, enhanced construction quality and improved durability of the New Bridge following construction; (b) Section 2.3: “Steel Assembly Area” provided that “Stee! girders would be constructed and protected from corrosion offsite, and then transported to the assembly area(s), either by road, or by barge on the St Lawrence River, if both the steel fabricator and the assembly area have direct access to the River’; (c) Significantly, road restrictions were identified in relation to steel girders which could not exceed a maximum length of 45 m. Any girders in excess of this length would be transported by river. While no particular weight29. 30, 31 32, 33. BLG restrictions were expressly provided, Section 2.3 confirmed that a 45m long steel box girder, divided into three sections, would have elements weighing in excess of 65 MT; (d) Transportation Options. A number of access routes via road or water were identified. Section 3.2.3 expressly recognized __that__‘{Tjhe Champlain Bridge will be used as_a major axis for traffic movement of construction vehicles from Montreal and/or lle des Soeurs to the South Shore and vice versa’ (our emphasis). Contrary to what was stipulated with respect to the Estacade and the Seaway Dike, the section did not reference nor include any limitations or specifications, regulating the passing of oversize or “hors norme™ loads over the Champlain Bridge; [Our emphasis] The Constructability Report confirms that the Champlain Bridge is the more optimal route to connect Worksite 4 (located under the Seaway dike and under the northern end of Champlain Bridge's main crossing) and Worksite 5 (eastern end of the NBSL, north of the Champlain Bridge) 3.3.5 “The route shown in Figure 19 is the more optimal route to connect worksites 4 and 5. The approximate travel time for this itinerary is 15 to 20 minutes. As this path makes use of the Estacade, a special permit may be required for vehicles with specific wheel loads. Transit of construction vehicles on the structure would need to be discussed with JCCBI’ [Our emphasis) Section 3.2.4 stipulates that “The Estacade access is regulated by JCCBI and is used by their contractors” and that ‘[T]he PP Contractor will need to structurally assess the Estacade for heavy construction plant’; Section 3.2.5 indicates that “the capacity of the Seaway dike to handle additional Toading from the heavy machinery that would operate on it should be verified prior to the start of the works"; Although Section 3.3.5 specifies that the transit of construction vehicles on the Estacade would need to be assessed with JCCBI, no similar mention or caution is made with respect to the use of the Champlain Bridge; The Constructability Report's "Conclusions and Recommendations” at Section 13 provide that “the site is generally well connected by road’ and refers to the restrictions applicable to the Estacade and the Seaway dike and are, once again, silent with respect to the use of the Champlain Bridge;EO 34. In fact, the Constructability Report contains but one single reference to the possibility that heavy vehicles may not be allowed to use the Champlain Bridge while providing, as a solution thereto, a description of alternative itineraries should that possibility occur: “2.5 In order to cover the possibility where, heavy vehicles are not allowed to use the Champlain Bridge, alternative itineraries avoiding the bridge have been identified and are described in next section’; 36. The Constructability Report, when read as a whole, indicates that because the Authority's philosophy contemplated a maximum of off-site manufacture and production of the NBSL's components, the transportation of same to the construction site was necessary and, consequently, expressly identified the areas where transportation or weight restrictions were likely to be imposed and for which the proponents had to make some additional verifications, such as with the Estacade and the Seaway Dike, without providing any similar or other indication that any such restrictions should be considered or factored by the proponents with respect to the use of the Champlain Bridge; C. The Private Partner's February 2015 Technical Proposal 36. Based on the information and recommendations made available to the Private Partner and the Construction Contractor by the Authority within the Disclosed Data, including the Constructability Report for the purposes of the RFP, the Private Partner and the Construction Contractor developed and designed a project execution strategy based on: (a) _ Significant offsite structural steel fabrication and conerete pre-casting of various elements weighing in excess 65 MT; (6) The transportation of (i) elements up to 80 MT, by road from Quebec and US pre-fabrication facilities by way of the provincial road network, the Champlain Bridge and Estacade and (ii) elements coming from overseas weighing in excess of 80 MT, by water; 37. The Private Partner's February 11, 2015 Technical Proposal submitted to the Authority included a “Construction Approach and Staging Plan’, which detailed the Construction Contractor's projected construction and transportation methods for certain categories of oversized loads, all of which took into account the indications of the Constructability Report, as appears from section A4.5 (ii) of the Proposal, communicated in support hereof as Exhibit P-6: 38. In particular, in addition to relying on on-site pre-casting of certain oversize components such as major structural components not truckable due to their weight or size, the projected transportation methods included! BLG39, 40 (a) (b) -11- Offsite pre-assembly of steel box girders for the composite deck structure to be trucked to the Site, in sections not exceeding 45 m long and up to 77 MT in weight (A4.S(ii), p.8 and p.19); and Offsite fabrication of pier segments, the weight of each section not exceeding 80 MT in order to allow their transportation via truck to the Site (A4.5(ii), p. 19); At the time of the RFP, the Private Partner, the Construction Contractor and the fabrication and transportation subcontractors’ experience was such that they had previously sought, applied for and successfully obtained from the MTMDET and JCCBI transportation permits for oversize loads; In fact, the Private Partner and the Construction Contractor's transportation strategy was based on: (a) (b) A thorough understanding of the MTMDET special permits framework by Canam, BPDL and EBC, highly reputable local market subcontractors with each in excess of 40 years of experience in such matters; Recent Quebec based project experience of the team members, including the Private Partner, the Construction Contractor and Canam within the context of various projects within the Province including: Projects Date Route Weight Allumettes Bridge | February to from Quebec to the | between 85 and Project April 2018 | border QuebeciOntario| 91. MT Burgyone Bridge February to from Quebec to Ontario 73 MT Project April 2015 Beaudette River Turcot Interchange | September 2014 | from Quebec to Turcot | between 65 and Project Interchange 69 MT North Channel Project | May to July 2012 | from Quebec to _| between 73 and ‘Cornwall 82 MT ‘A-30 PPP Completion |From October 2010| Various routes, from | approximately, Project to February 2012 | Québec, St-Eustache, | 850 transports Terrebonne and exceeding 65 MT] edeonto || and upto imothée, 75.4 MT Beauhamois, Les Cédres, Sorel and Terrebonne |at 42. 43. 44, 45. 46. -12- (c) The understanding that design optimization by the Private Partner and the Construction Contractor's post selection would drive the number of components weighing between 65 MT and 80 MT to about 30% of all the components; and (d) The obvious cost effectiveness and flexibility offered by a road transportation solution (i.e. less handling, faster delivery times, not impacted by the winter season or condition, etc.); as appears from the copies of the various permits for oversize loads obtained for other projects in the recent past and a letter from Canam communicated en liasse in support hereof as Exhibit P-7; The Private Partner and Construction Contractor's Technical Proposal and transportation strategy were consistent with the Vehicle Load and Size Limits Regulation, c.C-24.2,r.31 and the Regulation respecting special permits, c, C-24.2, 7.35, regulations which will be more fully detailed herein; The April 2015 Selection Process and Information Disclosed to the Authority On April 15, 2015, the Authority, following a complete and thorough analysis of their proposal, selected the Private Partner to design, construct, finance, operate, maintain and rehabilitate the NBSL; Beginning in April 2015, as was required by the Authority's procurement process, weekly or biweekly workshops were held between it, the Private Partner and the Construction Contractor; The purpose of the workshops was to allow the parties to exchange as much information as possible to ensure a successful Project and that the parties had a detailed and thorough understanding of the nature, scope and details of their respective obligations; Within that context and on a continuous basis, the Private Partner and the Construction Contractor provided and exchanged with the Authority information regarding their proposed design, including technical information on the components that would be prefabricated offsite and transported to the Site and over the Champlain Bridge; The Authority, despite having had ample opportunity and time to do so and despite having in its possession critical information that would obviously impact the transportation of the components, as envisaged by the Private Partner (i.e. the MTMDET Letters), either knowingly or negligently failed to provide any indication that either the Construction Contractor's design based on pre-fabricated elements with weights in excess of 65 MT or its transportation47. 48. 49 50. 53. BLG ahs strategy for same via the provincial road network could be or was problematic and would have to be reviewed; The June 2015 Contracts On June 16, 2015, the Authority entered into a Project Agreement with the Private Partner for the design, construction, financing, operation of, maintenance and provision of rehabilitation services for the Project (the “Project Agreement’), an electronic copy of which is communicated in support hereof as Exhibit P-8; On the same day, the Private Partner entered into a Construction Contract with the Construction Contractor to carry out the CC Activities which include the DB Works (the “Construction Contract’), an electronic copy of which is communicated in support hereof as Exhibit P-9; Pursuant to the Construction Contract, the parties agreed that to the extent that the Private Partner was obligated to provide design build services or work to the Authority under the Project Agreement, the design build work (the "DB Work’) was passed down to the Construction Contractor who assumed the obligations to perform those services in accordance with the terms of the Construction Contract; Moreover, section 4.1 of the Construction Contract sets up a contractual regime whereby to the extent that any entitlement of the Private Partner under the Project Agreement is related to the CC Activities or the rights or obligations of the Construction Contractor under the Construction Contract, the Construction Contractor, to the extent available to the Private Partner from the Authority, is entitled to the benefit of, inter alia, any indemnification or compensation, damages or other relief, including any extension of time all of which is defined as Equivalent Project Relief; The July 2015 Watson Report After the signing of the Project Agreement, the Construction Contractor mandated Watson transport hors normes ("Watson") to identify and assess the risks associated with the offshore fabrication of the components required for the Project; On July 7, 2015, Watson provided the Construction Contractor with a Fee Proposal and Preliminary Route Analysis (the “Watson Report’), communicated in support hereof as Exhibit P-10; In light of the contents and recommendations included in the Watson Report, the Private Partner and the Construction Contractor took a number of actions including identifying and securing alternative routes for the transportation of those components fabricated offshore and offsite;54, a 56. -14- The Private Partner and the Construction Contractor assessed that using six facilities in different locations in Quebec and the United States (Canam Québec, Marmen Trois-Riviéres, ADF Terrebonne, Canam Claremont and Henryville and BPDL St-Eugéne de Grantham) were adequate precautions in the circumstances; As part of its mandate, Watson contacted JCCBI and JCCBI's response dated July 6, 2015, at Schedule 11.9 of the Watson report, confirmed inter alia that: (a) Subject to obtaining a special permit, the permissible maximum weight of vehicles, including their load, for passage over the Champlain Bridge was 120,000 kg (ie. 120 MT which equates to approximately 90 MT loads); and (b) Subject to obtaining a special permit, the permissible maximum weight of vehicles, including their load, that would be allowed for passage over the Champlain Bridge during the construction of the NBSL was 120 000 kg; Consequently, JCCBI confirmed that, subject to the issuance of a special permit, passage on Champlain Bridge of vehicles weighing up to 120MT would be allowed; PART Ill: CONTRACTUAL ENTITLEMENTS A. 57, 58. Supervening Events |. Contractual Entitlement Pertaining to Supervening Events Section 1.5 of the Project Agreement reads as follows: Exercise of Parties’ Rights in Good Faith 1.5.1 The rights of each party hereto shall be exercised in good faith and not in an excessive or unreasonable manner, all in accordance with the principles set out in Articles 6, 7 and 1375 of the Civil Code. For interpretation purposes, the fact that the term “reasonable” or any other similar expression is used from time to time to qualify the exercise of a right or obligation set out herein shall be read as a reminder to the parties of their obligation to exercise their respective rights in accordance with the requirements of the Civil Code. Accordingly, the absence of such qualifier in certain sections shall not be interpreted as meaning that such requirements do not exist with respect to the rights and obligations set out in these sections. Sections 7.1 and 7.4 of the Project Agreement read as follows:-15- 7, Disclosed Data 7.1 Availability of Information As of the Commencement Date, the Private Partner has been provided with the Background Information and the Guaranteed Engineering Data. The Authority shall_make_avaitable_to_the Private Partner such additional relevant information relating to the Project which is within the possession or under the control of the Authority. The Authority shall have no obligation however to provide any information for which the Authority is bound by an obligation of confidentiality or restricted access, or that the Authority is precluded from disclosing under any applicable Privacy Laws. The Background Information and Guaranteed Engineering Data, together with any additional information of the nature of the reference materials disclosed as Background Information which may be provided by the Authority after the Commencement Date are, for the purpose of this Section 7, collectively referred to as the “Disclosed Data’. 7.4 Knowledge Undertaking Without limiting the provisions of section 3, the Authority agrees that if at any time during the Term any of the information in the Disclosed Data is, to the actual knowledge of the Authority, incorrect or there is relevant information in the possession or control of the Authority that would make any of the information in said Disclosed Data incorrect, then, such circumstances, except if otherwise known by the Private Partner or an PP Person shall constitute a Compensation Event. [Our emphasis} 59. A Supervening Event is, with respect to the Private Partner, a Compensation Event or a Relief Event as defined in sections 44.3 and 44.5 of the Project ‘Agreement, allowing the Private Partner under section 44.1.1 of the Project ‘Agreement to apply for relief from its obligations or for extension of time, or claim compensation, fo the extent that such event interferes adversely with, or causes a failure of performance of the Project Work; 60. Such circumstances and events include the events or circumstances described in section 7.4 of the Project Agreement, above; ll. Supervening Event SE-012: MTMDET’S 65 MT Limitation on the Quebec Road Network i, MTMDET March 5 and April 9, 2015 Letters (the MTMDET Letters) BLG61 62 63, -16- During the REP, the proponents were prohibited from communicating directly with the MTMDET or JCCBI, as Restricted Authorities, in relation to the Project: 3.7 Restricted Authorities Subject to any restrictions otherwise set forth in this RFP, including for clarity in this Section 3 and Section 9, the Proponent and the members of the Proponent Team, as well as any of their respective Representatives, are permitted to communicate directly with any municipality, tilly or other government authority with respect to any municipal, utility or governmental requirements related to the Project, except for the following: [...] () Ministére des Transports du Québec; [...] () The Jacques Cartier and Champlain Bridges incorporated; as appears from the relevant section of the RFP, communicated in support hereof as Exhibit P-11; The RFP further provided that: 3.10 Enquiries All enquiries regarding any aspect of this RFP (each an “Enquiry’) should be directed by the Proponent Contact Person to Canada through the Data Room using the facility in respect of Enquiries provided in the Data Room. The following procedures apply to any Enquiry: Led (6) @ Proponent may request that a response to an Enquiry be kept confidential if the Proponent considers the Enquiry is commercially confidential to it; if Canada decides that an Enquiry or Canada’s response should be distributed to all Proponents, then the Canada Contact Person will permit the enquirer to withdraw the Enquiry rather than receive a response; (...) as appears from the excerpt of the RFP; It is now known by the Private Partner and the Construction Contractor that because of the unusually high number of oversized transports required by its strategy, one of the other qualified proponents (‘Proponent D”) had sought from the Authority its consent to meet with the MTMDET and, in fact, did meet with the MTMDET on at least two occasions;64. 65. 66. 67. “17 On March 5, 2015, following one of its meetings with Proponent D, the MTMDET, concerned about the significant weights of the loads envisaged by this proponent and the potential rupture of, cracking or falling of concrete fragments from the various road structures upon which the roads would be carried, advised to the Authority that it was inclined to be conservative and limit the loads for the transported elements to 65 MT: [J Compte tenu du nombre important de déplacements envisagés et du poids total trés élevé de chaque chargement, nous sommes davis que les déplacements proposé par le consortium pourraient entrainer, mémes s'ls ne provoquent pas de rupture, de Ia fissuration et des chutes de fragments de béton. En conséquence, nous sommes enolins a étre restrictfs, et a limiter le poids maximal des éléments transportés 4 65 tonnes. Vous trouverez plus d'information & ce sujet dans le Manuel de conception des structures du MTQ, téléchargeable du site des Publications du Québec. [...] as appears from the March 5, 2015 letter, communicated in support hereof as Exhibit P-12; Coming at a time when the Authority's procurement was well advanced, following the Authority's disclosure of the March 5, 2015 letter to Proponent D, this restriction’s obvious potential financing and pricing impacts for all the proponents, Proponent D asked that the Authority to intervene and have the MTMDET reconsider its position; Significantly, Proponent D did not require that the Authority keep its Question no. 375 or the contents of the MTMDET March 5, 2015 letter confidential; The Authority, in its response to Question no. D-375, responded that it was, in essence, up to the proponent to either convince the MTMDET to change its point of view or to discuss with the MTMDET “alternate possible arrangements”68. 69. 70. 1 -18- as appears from a Table summarizing meeting requests and Enquiries submitted by all Proponents during the RFP and attached documentation, communicated in support hereof en liasse as Exhibit P-13; The Authority chose, without any legal or contractual basis, to treat its response confidential, as appears from the above Table (Exhibit P-13); The fact is that the Authority was then, if it was not already fully aware that, the MTMDET's newly disclosed weight limitation would impact each proponent’s proposal including the Private Partner and the Construction Contractor's transportation strategy, which contemplated the transportation of components exceeding the MTMDET's now known and newly implemented weight limitation following the Authority's earlier receipt of the Private Partner's Technical Proposal which had been reviewed by and with the Authority; Despite the obvious critical nature of this information, the Authority, in the absence of any legal or contractual basis, either chose not to or failed to disclose either the letter or the information contained therein to the Private Partner and the Construction Contractor during the RFP, or in a timely manner thereafter following the signature of the Project Agreement; On April 9, 2015 the MTMDET, aware of the implications and potential impacts of its new restriction communicated an unsolicited second letter to Mr. Louis Lévesque, deputy minister for Transports Canada, which provided the Authority with particulars and complementary information pertaining to the MTMDET's weight restriction:72. 73. -19- [...] La présente vise 4 fournir un complément d'information la lettre transmis par la sous-ministre adjointe aux projets stratégiques & son homologue de la division des Pont fedéraux de Montréal d'Infrastructure Canada le 5 mars dernier. La lettre avait pour objet le transport d’éléments structuraux préfabriqués sur le réseau routier 4 destination du chantier du Corridor du nouveau pont sur le Saint-Laurent. Led Tous les projets d’envergure au Québec sont ainsi traités avec la méme rigueur. Citons, a titre exemple, le projet de construction de [Autoroute 30 en Montérégie en 2011-2012. Le rapport dexpertise du Ministére avait alors fait ressortir que, compte tenu du nombre élevé de déplacements hors normes, ceux-ci devaient 6tre limités, pour la plupart, & des chargements d'environ 65 tonnes. Dans un contexte différent, en 2014, le Ministére avait autorisé un transport d'un transformateur, un Jot indivisible de 90 tonnes, et ce, a des heures précises, sur une courte distance et en présence descortes policiéres. Les analyses de ce cas particulier avaient permis de conclure que le déplacement et les conditions assorties étaient sécuritaires, Ll La construction du nouveau pont sur le Saint-Laurent générera vraisemblablement un volume trés élevé de déplacements de véhicule hors normes, et ce, lintérieur d'une région ot il existe un fort achalandage et de multiples risques d'entraves & la circulation. Etant donné ces circonstances et sur la base des informations qui aecompagnaient les demandes déposées @ des fins de préanelyse, le poids des poutres préfabriquées devant étre transportées par camion ne pourra excéder 65 tonnes. [...] as appears from the April 9, 2015 letter, communicated in support hereof as Exhibit P-14; The Authority, despite the obvious “public” implications of this letter either knowingly or negligently chose, once again, not to disclose this second letter or its contents to the proponents; Without any legal or contractual basis therefore, the Authority failed to disclose ciitically important and relevant information to the proponents for the development of their respective proposals during the RFP process (Contract ‘A’) or thereafter following the signing of the Project Agreement (Contract “B") despite its legal and contractual obligations to do so:74. 75: 76. 77. 78. 79 80. 81 BLS -20- ii. Circumstances leading to the Private Partner and the Construction Contractor's knowledge of the MTMDET Letters On June 8, 2016, more than a year after the communication of the MTMDET Letters to the Authority, during the course of a meeting between the Construction Contractor and the MTMDET, the Construction Contractor informed the MTMDET of the number of heavy load transports contemplated by its transportation strategy and required for the construction of the NBSL; More particularly, the Construction Contractor outlined its intention to seek the special permits required to move elements weighing up to 80 MT; The Construction Contractor was then advised and leamt for the first time that the MTMDET had implemented a maximum weight limitation of 65 MT for the transportation of offsite prefabricated components on provincial roads for the NBSL Project; The Construction Contractor was also made aware during the course of the meeting that the MTMDET had communicated its decision to implement the weight limitation to the Authority in two letters, long before the Project Agreement signing on June 16, 2015; In light of the obvious and very serious implications of this weight limitation on the Construction Contractor's transportation strategy, the MTMDET representatives were surprised to learn that the Private Partner and the Construction Contractor were never advised of such decision; The Construction Contractor immediately sought copies of the MTMDET Letters but its repeated requests to both the MTMDET and the Authority for copies of same thereafter remained unanswered; On June 27, 2016, confronted with the MTMDET's refusal to voluntarily provide copies of the MTMDET Letters, the Construction Contractor had no other alternative but to file an application to the MTMDET pursuant to the Act respecting Access to documents held by public bodies and the Protection of personal information, ¢. A-2.1 in order to obtain a copy of the MTMDET Letters, as appears from the June 27, 2016 request for information to the MTMDET, communicated in support hereof as Exhibit P-15: On or around June 30, 2016, various permit applications previously filed by the Construction Contractor's transport subcontractors were refused by the SAAQ because of: (a) The weights of the transports pertaining to the permits exceeded the 65 MT limitation applying to the Project;82. 83, 84, 85. 86, 87, 88, BLG -24- (0) The fact that two other structures along the proposed route would not be able to support the load for which a permit was sought; and (©) The fact that the permissible or maximum load analysis for the Turcot interchange was still ongoing; as appears from permit applications and the related SAAQ responses, communicated en liasse in support hereof as Exhibit P-16: The MTMDET, through the SAAQ justified the refusals by referring expressly to both MTMDET Letters when corresponding with the Private Partner and the Construction Contractor; On July 8, 2016, the Private Partner and the Construction Contractor informed the Authority that following their receipt of the SAAQ's permit application refusals due the now “excess” weight of the transports and the SAAQ's justification for same based on the undisclosed MTMDET Letters, notified the Authority that such events constitute a Supervening Event pursuant to section 44 of the Project Agreement, as appears from the Private Partner and the Construction Contractor notices of July 8, 2016, communicated in support hereof as Exhibit P-17; On July 15, 2016, after several informal requests, the Private Partner and the Construction Contractor formally required that the Authority disclose the MTMDET letters pursuant to section 7.1 of the Project Agreement, as appears from the letters of July 15, 2016, communicated en liasse in support hereof as Exhibit P-18; On July 22, 2016, the Authority took the position that the MTMDET Letters were confidential but that it was seeking to obtain the proponent’s consent to release them, as appears from the Authority's July 22, 2016 letter to the Private Partner, communicated in support hereof as Exhibit P-19; On July 28, 2016, the Authority finally relented and provided copies of the MTMDET Letters, as appears from the Authority's letter and the MTMDET Letters attached thereto, communicated in support hereof as Exhibit P-20; From that point on, the Private Partner and the Construction Contractor, in conformity with their mitigation obligations, sought to limit the very significant financial and scheduling impacts caused by the MTMDET's weight limitation and the Authority's failure to disclose same in a timely fashion and they immediately initiated discussions with the MTMDET to identify alternatives and solutions to that effect Since then, a few waivers to the Project's 65 MT weight limitation have exceptionally been granted by the MTMDET:89. 90. 91. oe -22- (a) The MTMDET has authorized, conditional to finding a structurally acceptable itinerary, the Construction Contractor's request to directly deliver by road the 34 pier segments over 65 MT but under 80 MT, from BPDL - St-Eugéne de Grantham to the East Approach ~ Brossard; (b) The MTMDET has authorized, conditional to finding a structurally acceptable itinerary, the Construction Contractor's request to directly deliver by road 4 box girders over 65 MT but under 80 MT (2 each from Canam and ADF) to the West Approach prior to the activation of the marine and rail solutions; (c) The MTMDET has authorized, conditional to finding a structurally acceptable itinerary, the Construction Contractor's request to directly deliver by road six box girders weighting between 65 MT and 71.5 MT from Sorel to the East Approach when the Seaway is closed; and (4) The MTMDET has authorized, conditional to finding a structurally acceptable itinerary, the Construction Contractor's request to directly deliver by road the pier caps E09 and E10 over 65 MT and up to 81 MT from Sorel to the East Approach when the Seaway is closed, as appears from the transportation solution submitted to the MTMDET on September 8, 2016 and related emails communicated en liasse in support hereof as Exhibit P-21; However, the MTMDET did not authorize the Private Partner and the Construction Contractor's request to transport by road 10 box girders from Henryville to Sorel, instead of St-Lambert, as appears from an email from the MTMDET dated September 28, 2016 communicated in support as Exhibit P-22; The Private Partner and the Construction Contractor's Entitlement for Supervening Event SE-012 Because the Authority was well aware of both the Private Partner and the Construction Contractor's transportation strategy disclosed in the Private Partner's Technical Proposal and the 65 MT restriction subsequently imposed by the MTMDET, and despite the critical nature of this restriction for the Private Partner and the Construction Contractor, the Authority, without any legal or contractual justification, failed to disclose, either willfully or negligently, the MTMDET Letters or the information contained therein to the Private Partner and the Construction Contractor either during the RFP, or in a judicious or timely manner following the signing of the Project Agreement; The Authority's failure to communicate such critical information to the Private Partner and the Construction Contractor during the RFP runs contrary to the nature and intent of the Authority's procurement process which sought to92. 93, 94. 965, 96. 97. 98. ELS -23- favour and promote full and timely disclosure of all relevant information prior to the signing of the Project Agreement and on an on-going basis thereafter and constitutes, in addition to a violation of its legal obligations, a clear violation of the contractual obligations set out at articles 1 and 7 of the Project Agreement; The Private Partner and the Construction Contractor were well-founded to rely on the Disclosed Data made available to the proponents during the RFP in establishing their design and project execution strategy, including the use of the contemplated elements weighing over 65 MT; The Disclosed Data made available to all the proponents during the RFP provided no information or indication of the weight restriction implemented by the MTMDET for the Project; Pursuant to section 6.1 of the Project Agreement, the Private Partner is responsible to apply for, obtain, maintain, extend and renew all permits that may be required to carry out the Project Work; Because the new weight restrictions were neither publicly available nor part of the Disclosed Data during the RFP and because the Authority, once it had the information, failed to disclose it to the Private Partner and the Construction Contractor in a timely manner, their project design and construction strategy were founded on that information available at the time and on the prevailing weight restrictions; Had the Authority disclosed to the Private Partner and Construction Contractor the information it had at its disposal, as it was required to do by the terms of the REP process, the Project Agreement and the Law, their design and construction approach would have been adapted to comply with the permits requirements or they would have implemented a different transportation strategy, Moreover, the failure to communicate the information contained in the MTMDET Letters following the signing of the Project Agreement, when there was no more basis, if there ever was one, to protect the commercially sensitive information exchanged with each of the proponents in the context of a competitive tendering process, runs contrary to the Authority's basic legal obligations to act in good faith and to collaborate with the Private Partner; The Authority seeking to justify its failure to communicate the information, relied on some references in the Constructability Report and the MTMDET's Manuel de Conception des structures (the "2014 Manual"), despite the fact that the Constructability Report makes no mention of a 65 MT limitation and that the 2014 Manual does not apply to this Project, as will be demonstrated at trial;99. 100. 101 102. 103. 104, -24- There is no valid or legal justification for the Authority's failure to disclose relevant and material information in its possession and any attempt to justify its failure on such specious grounds is simply further evidence of its bad faith; In light of the foregoing, the Authority's failure to communicate either during the RFP process (Contract “A”), or in a timely manner following the signing of the Project Agreement (Contract *B"), to the Private Partner and the Construction Contractor the imposition by the MTMDET of a weight limitation of 65 MT for the transportation of the precast elements of the Project, despite it having full knowledge of same as of March and April 2015, constitutes a breach of Contract “A’ and Contract “B" as well as a Supervening Event as defined in the Project Agreement; Ill, Supervening Event SE-011: Limitation for Heavy Vehicles to Cross the Champlain Bridge i. Governmental Overlap Between the Authority and JCCBI As mentioned above, JCCBI is a parent crown corporation and agent of her Majesty, named under Part 1, Schedule III of the Financial Administration Act, (R.S.C., 1985, c. F-11); As such, JCCBI is bound to report to the Parliament (i.e. the Authority) on its operations, finances and other important issues, through the Minister of Infrastructure and Communities; It is important to recall that: (a) JCCBI’s activities are overseen by Infrastructure Canada (the Project Authority as per the Project Agreement and the representative of the Authority within the context of the Project). Infrastructure Canada, like JCCBI, is a crown corporation reporting to the Minister of Infrastructure and Communities, the whole, as appears from excerpts of the website of JCCBI (Exhibit P-4) and an excerpt of the website of Infrastructure Canada, communicated in support hereof as Exhibit P-23; (b) The 2016-2017 Report on Plans and Priorities of Infrastructure Canada provides that it “is also responsible for overseeing the Jacques Cartier and Champlain Bridges Incorporated, a crown corporation whose mandate is to ensure users’ safe passage on its structures located in the Great Montreal Area’, as appears from page 7 of said Report, communicated in support hereof as Exhibit P-24; Therefore, at all times relevant to the present claim, JCCBI and Infrastructure Canada were operating under the same authority, namely the Minister of Infrastructure and Communities, and were intimately connected;105. 106. 107. 108. BLG -25- ii. Circumstances Leading to the Private Partner and the Construction Contractor's Knowledge of the JCCBI Restrictions On April 26, 2016, a meeting was held between JCCBI and the Construction Contractor to deal with its request for permits to deliver pre-cast segments for the NBSL's cable stay main span tower. The permits were sought for oversized vehicles to transport the first segments of the NBSL, as appears from the minutes of the April 26,2016 meeting, communicated in support hereof as Exhibit P-25; At that time, thirty-two (32) of the forty-four (44) pre-cast segments for the NBSL cable stay main span tower had been fabricated and were ready for delivery to the Project; A vehicle is “oversized” (i.e. “hors norme") when its weight exceeds the limits provided by the Vehicle Load and Size Limits Regulation, ¢. C-24.2, r.31; The Regulation respecting special permits, 0. C-24.2, 1.35 identifies seven permit classes and determines the authorized load and dimensions for each of the seven permit classes. For ease of reference, a chart taken from the Simplified Guide to the Regulation Respecting Special Permits is reproduced below: LOAD AND SIZE LIMITS ACCORDING To PERHIT CLASS AND CRrEBURY th as appears from the Simplified Guide to the Regulation respecting special permits, communicated in support hereof as Exhibit P-26;109. 110. 111 112. 113. 114, 116. 116. BLG -26- During the April 26, 2016 meeting, JCCBI indicated that it would not issue the requisite permits considering the new prohibition of Class 6 and 7 vehicles from crossing the Champlain Bridge; On or around May 12,2016, JCCBI officially refused the Construction Contractor's permit request to access and pass over the Champlain Bridge with the 44 segments, as more fully appears from a letter dated May 12, 2016, communicated in support hereof as Exhibit P-27; JCCBI justified its decision to refuse frequent passage of these heavy loads on the Champlain Bridge because its detailed inspections of the bridge carried out in 2016 had revealed new cracks on some of its beams which justified its position to refuse all oversize transports on the bridge; "(...) les activités dinspection détaillées de 2016 actuellement en cours démontrent la présence de nouvelles fissures verticales sur certaines poutres justifiant hors de tout doute notre position de ne pas permettre le passage de véhicules hors-normes sur le Pont Champlain et ce, peu importe la configuration choisie »; On May 20, 2016 and again on July 14 and July 29, 2016, the Private Partner and the Construction Contractor notified the Authority of JCCBI’s refusal and, pursuant to section 44 of the Project Agreement, informed the Authority that it would result in negative scheduling and cost impacts, as appears from the Private Partner and Construction Contractor notices of May 20, July 14 and July 29, 2016, communicated in support hereof as Exhibit P-28 On July 26, 2016, the Private Partner learned that JCCBI intended to impose even stricter access and passage weight limitations by prohibiting Class 5 vehicles (as per rating of the SAAQ) (gross vehicle weight of 43.5 MT which equates to approximately 30MT loads) from crossing the Champlain Bridge, commencing in September 2016; Such information was subsequently confirmed in an Authority's letter dated August 8, 2016, as appears from said letter, communicated in support hereof as Exhibit P-29; On October 10, 2016, JCCBI implemented its restriction for all vehicles falling under Class 5 and Class 6 permits from crossing the Champlain Bridge, as appears from the press release issued on September 30, 2016, communicated in support hereof as Exhibit P-30; Prior Reassurances proffered by JCCBI Over the previous five years and up until the imposition of the 2016 restrictions for the Project, permits for the passage of oversize vehicles over the-27- Champlain Bridge continued to be issued, as appears from JCCBI's Table pertaining to the Permit Requests for heavy vehicles to cross the Champlain Bridge since January 1, 2013, communicated in support hereof as Exhibit P-31; 117. At no time during the procurement process, neither the Private Partner nor the Construction Contractor had any reason to suspect that these restrictions for oversize loads would be required for the Champlain Bridge starting in 2016; 118. In its 2015-2016 Annual Report 2015, at page 15, JCCBI made the following statements: "To keep users safe until the new bridge is in service, JCCBI deployed exceptional _measures on the _ Champlain Bridge. Through the integrated management of data on the bridge's behavior and condition, JCCBI prioritized the most needed reinforcement work and preventively managed the risks associated with a structure at the end of its service life Thanks to preventive measures on the Champlain Bridge, including work done to address the recommendations in the latest inspection report, JCCBI has seen a clear improvement _in the bridge's overall behavior_in the past year. The results from a comprefiensive inspection rating developed _to_include_all reinforcement elements have also demonstrated the effectiveness of this approach. The modular trusses are additional steel structures that support the full load of the edge girders. They are installed under the girders and rest on the bridge piers. These structural elements fully compensate for any current or future deterioration of the edge girders, which optimizes user safety.” {Our emphasis] the whole, as appears from JCCBI's 2015-2016 Annual Report, communicated in support hereof as Exhibit P-32: 119. Similar statements were also included in a press release issued on April 7, 2016 by JCCBI “On the Champlain Bridge, many projects are ongoing both from the river and on the bridge deck to keep the bridge safe until it is decommissioned. Overall, JCCBI is planning to install 48 modular trusses, replace 11 expansion joints, and repair 6 piers. BLGovis Modular trusses are additional stee! structures installed under the edge girders to support their full load. These structural elements will fully compensate for any current or future deterioration of the edge girders. During two weekend blitzes this spring, the bridge structure will be reinforced with modular trusses installed from the deck. This work will require @ complete closure towards the South Shore on April 30 and May 1 and a complete closure towards Montreal on May 7 and 8. Four weekend blitzes have also been planned for this fall.” (Our emphasis) as appears from the April 7, 2016 press release, communicated in support hereof as Exhibit P-33; 120. These new and additional restrictions imposed by JCCBI in 2016 resulted, if JCCBI's statements set out above are to be believed, the unanticipated and rapid deterioration of the bridge and its structures; 121. On September 30, 2016, the restrictions were also confirmed by JCCBI during a technical briefing to the trucking industry announcing the implementation of the new restrictions on the Champlain Bridge: Installation de treillis modulaires Structures d'acier permettant_de_pleinement _compenser_la dégradation actuelle et future des poutres de rive +63 treillis modulaires installés 4 ce jour +21 autres a étre installés en 2016, et 10 en 2017 +6 poutres de rive étayées +4 m de haut et 53 m de long +56 000 kg BLG122. 123, 124. 125. BLG ee Mise en service des feux de voie Installation treillis [Our emphasis] as appears from JCCBI's PowerPoint Presentation dated September 30, 2016, communicated in support hereof as Exhibit P-34; iv. The Private Partner and the Construction Contractor's Entitlement for Supervening Event SE-011 As mentioned above, the Constructability Report's principal objective was to “identify potential constructability issues that could affect the Project, including those relating to transportation’; Arup Canada, Inc, (“Arup”) prepared the Constructability Report on behalf of the Authority. In that context, Arup benefitted directly from and had access to the numerous engineers of JCCBI responsible for the Champlain Bridge, as appears inter alia from a memorandum sent to JCCBI by Arup on July 17, 2014 included in Appendix B of the Constructability Report; Given Arup’s expertise, presumably its access to Infrastructure Canada's information and personnel for the purposes of their report, the time allotted to prepare the Constructability Report and its stated purpose to inform the proponents, they were entitled to and justified in relying on the information contained therein, subject obviously to the limitations, restrictions, authorizations or clearances expressly identified in the Constructability Report, none of which provided any indication of the restrictions to come; Having been informed during the RFP by the Authority that it had expressly identified the Champlain Bridge as the ‘major axis for traffic movement of126. 127. 128. 129. 130. 131 132. 133, BLG -30- construction vehicles” in order to transport the heavy components fabricated offsite’, neither the Private Partner nor the Construction Contractor could have known nor anticipated that the access to same would subsequently be severely curtailed and the impacts that it would have on its transportation strategy; As for the Authority, it was not and could not be unaware of JCCBI's intentions to impose restrictions pertaining to the passage of oversize loads over the Champlain Bridge, given the governmental overlap between the two; As a result of Arup's consultation with JCCBI's engineers and the governance overlap between the Authority and JCCBI, the Authority knew or ought to have known of the Impending closure of the Champlain Bridge. It failed in its obligation of transparency in allowing incorrect information to be provided to the Private Partner and the Construction Contractor during the RFP stage; Rather, JCCBI continuously represented that, despite the deterioration of the Champlain Bridge, all necessary measures had been put in place to allow oversized loads to continue crossing the Champlain Bridge throughout the Project; If there was a significant risk that this course of action was going to change during the Project it was incumbent on the Authority and/or Arup who benefitted from JCCBI's advice to so advise the Private Partner and the Construction Contractor during the RFP process; Given that the Authority knew or ought to have known that JCCBI would impose the foregoing restrictions and did not inform the Private Partner of same, the Authority failed in its contractual and legal obligations to provide the Private Partner with all relevant and essential information relating to weight limitations applying to the use of the Champlain Bridge pursuant to sections 7.1 and 7.4 of the Project Agreement; In doing so, the Authority also failed in its general legal obligation to act in good faith and to collaborate with its co-contractor, In light of the foregoing, the Authority's failure to timely communicate to the Private Partner and the Construction Contractor the limitations imposed by JCCBI to no longer allow the transport of any oversize loads over the Champlain Bridge, irrespective of the transport configuration (heavy vehicles that fall under a Class 5, Class 6 or Class 7 permit), constitute a breach of Contract "A” and of Contract “B” as well as a Supervening Event as defined in the Project Agreement; In addition, to the extent that the reasons for the imposition of the weight restriction in 2016 were unknown to either of the parties, but once it was134. 136. 137. 138. -31- implemented by JCCBI, the Authority thereafter had actual knowledge or had information in its control that the use of the Champlain Bridge as contemplated by the Authority in its Constructability Report was no longer possible; The imposition of this new restriction constitutes a Compensation Event, as defined in the Project Agreement, and entitles the Private Partner and the Construction Contractor to the relief described in Section 44.1.1 of the Project Agreement including relief from their obligations or an extension of time or a right to claim compensation; The Construction Contractor and the Private Partner both expressly reserve their respective rights to seek an extension of time, as contemplated by both the Project Agreement and the Construction Contract, as a result of the occurrence of both Supervening Events; Works Change in Law i. Works Change in Law 001: Restriction for Heavy Vehicles to Cross the Champlain Bridge JCCBI's weight limitations prohibiting heavy vehicles that fall under a Class 5, 6 and 7 permit in accordance with the SAAQ's ratings from crossing the Champlain Bridge also constitute a Works Change in Law within the meaning provided for such event in the Project Agreement; ii. Contractual Entitlement Pertaining to Works Change in Law ‘A Works Change in Law is described in section 1.379 of Schedule 1 of the Project Agreement as follows: "Works Change in Law" means a Change in Law, other than a Discriminatory Change in Law, occurring after the Reference Date and causing the Private Partner to perform any alteration, addition, demolition, extension of or a variation in or to the Project Work or the quality or function of the Project Infrastructure which: }) would not otherwise have been required, were it not for such change, and ii) was not reasonably foreseeable at the Reference Date by an experienced contractor carrying out activities or performing design or other operations similar to those to be carried out or performed by the Private Partner in relation to the Project Work.” A Change in Law is described in section Section 1.34 of the Project Agreement as follows: “Change in Law" means the coming into force, amendment, variation or repeal (without re-enactment or consolidation) after139. 140. 144 142. 143. 144 148, -32- tho Reference Date, of any Law which is binding on the Private Partner. The terms “Law” is defined very broadly at Section 1.179 of the Project Agreement as including “any law, regulation, immunity, court order or judgment, order in council, writ, administrative interpretation, code, injunction, rule, directive, guidelines, policy or decision of any Governmental Authority, having the force of law, affecting, applicable to or otherwise relating to the Private Partner, the Project or the Site or any portion of the Project Work"; The occurrence of a Works Change in Law allows the Private Partner to seek compensation for any increase or decrease, as the case may be, in the Capital Expenditures and Operating Costs to perform the Project Work and, as applicable, the Private Partner shall also be entitled to seek relief and an extension of time, as set out in Section 43.3.1 and following of the Project Agreement The JCCBI 2016 Restrictions Qualify as a Works Change in Law The Private Partner’s Technical Proposal, including Section A4.5 (Construction Approach and Staging Plan), was integrated in the Project Agreement as Schedule 10; As clearly stated at pages 8, 19 and 26 of Section A4.5, the intention of the Construction Contractor was (i) to design the various bridge components with a weight not to exceed 80 MT, (ji) to fabricate at offsite facilities these various bridge components, and (ii) to truck said components to the Site; This strategy was consistent with the prevailing Vehicle Load and Size Limits Regulation, c. C-24,2, .31 and the Regulation respecting special permits, c. C-24.2, r. 35; JCCBI's decisions fall within the meaning of “directive, guidelines, policy or decision of any Governmental Authority” that affect or are otherwise applicable to the Private Partner; ‘A “Governmental Authority’ is defined at section 1.129 of the Project Agreement as “any federal, provincial, territorial, regional, municipal or local government authority, quasi-governmental authority, court, government or self-regulatory organization, commission, office, board, regulatory, administrative or other agency, or any political or other subdivision, department or branch of any of the foregoing, having jurisdiction in any way over or in respect of any aspect of the performance of the Project Agreement, the Site or the Infrastructure located thereon, or any part thereof or any aspect of the Project Work, including the Federal Government” (our emphasis);146. 147. 148. 149. 150. PARTI 181 152. -33- JCCBI is a federal Governmental Authority as defined above. It has jurisdiction over any aspect of the performance of the Project Agreement, ie. the transportation of the precast elements of the Project; These same decisions have force of law since the Private Partner and the Construction Contractor must comply with the limitations and restrictions imposed upon by the applicable regulations and cannot transport precast elements in the absence of the required permits. These decisions are final and binding upon the Private Partner and the Construction Contractor. The latter have no choice but to respect the decisions of JCCBI, as its omission to do so could result in penal sanctions; The restrictions and limitations were not in force at the Reference Date and, consequently, constitute a variation or an amendment or a new rule or directive from JCCBI, and, as such, constitute a Works Change in Law as contemplated by the Project Agreement and: (a) _ have caused to the Private Partner an important alteration and variation of its Project Work that would not have been required, were it not for such Works Changes in Law, and; (b) were not known by the Private Partner and the Construction Contractor at the Reference Date, and were not reasonably foreseeable, at the Reference Date, by an experienced contractor carrying out activities or performing design or other operations similar to those to be carried out or performed by the Private Partner in relation to the Project Work. On July 14, and August 10, 2016, the Construction Contractor_and the Private Partner notified the Authority of the occurrence of a Works Change in Law, pursuant to section 43.3 of the Project Agreement, as appears from the Private Partner and the Construction Contractor's notices of July 14 and August 10, 2016, communicated in support hereof as Exhibit P-35; ‘The Construction Contractor and the Private Partner both expressly reserve their respective rights to seek an extension of time, as contemplated by both agreements, as a result of the occurrence of this Works Change in Law; DISPUTE RESOLUTION PROCEDURE A Dispute Resolution Procedure is provided for at Schedule 26 (Part 1 and Part 2) of the Project Agreement; The Dispute Resolution Procedure requires that the parties and the Standing Committee treat the meetings, deliberations, documents and information exchanged during the course thereof as confidential;153. 184. 156. 156. 187. -34- On May 20, July 8, July 14, July 29 and August 10, 2016 the Private Partner and the Construction Contractor notified the Authority as required by the Project Agreement (and the Construction Contract) of the occurrence of the Supervening Events SE-011 and SE-012 and Works Change in Law WCIL-001, as appears from Exhibits P-17, P-28 and P-36; On September 8, 2016, pursuant to the Dispute Resolution Procedure, the Private Partner and the Construction Contractor submitted a “Summary Dispute Notice” to the Standing Committee and a “Dispute Notice” to the Authority, in connection with the transportation issues detailed herein On October 17,2016, a hearing was held before the Standing Committee following which a decision was rendered on October 31, 2016; The parties then pursued the negotiations under Section 2.1 of Part2 of Schedule 26 of the Project Agreement; Despite the Private Partner's and the Construction Contractor's best and sustained efforts, the parties were unable to conclude a mutually satisfying and final resolution to their issues and the Private Partner and the Construction Contractor are well-founded to submit their disputes for final resolution to the Superior Court; PART V: COMPENSATION, EXTENSION OF TIME, RELIEF AND LIQUIDATED DAMAGES 158. 159. Bs As of the date of the filing of these proceedings, the Private Partner and the Construction Contractor estimate to $123,885,290.99 the aggregate additional logistic costs, mitigation and acceleration measures, insurance, contingency and risk and indirect costs resulting from the events described hereinabove, which amount or head of damages will be adjusted in due course based on the supporting evidence to be adduced at trial, as appears from a table of the Private Partner's costs estimates, 4 parfaire, communicated in support hereof as Exhibit P36; The Technical and Financial Impact of these Unforeseeable Events The Private Partner and the Construction Contractor's initial transportation strategy was based on a Delivered Duty Paid ("DDP") delivery sequence, leaving the subcontractors acting as the expert, which strategy is detailed as follows: (a) Onsite concrete precast fabrication for the large and very heavy concrete footings and pier starters (up to 900 MT); (b) All steel components to be fabricated offshore which weighed in excess of 80 MT would be transported by international shipping to a port in the160. 161 162. 163. 164, BLG -35- region of Montreal and thereafter transported by marine barge to the Site; and (©) _ Fixing a 80 MT Design Constraint for all components fabricated offsite in Quebec and the United States in order for these components to be transported by road using the Québec network to the Site; The Champlain Bridge was the primary road access to the Site for all offsite fabricated elements originating in Quebec; The weight limitations imposed by JCCBI and the MTMDET, which unfolded starting in the spring of 2016, entirely disrupted this initial strategy at a point in time where they required material changes therein, causing a colossal and complex adverse financial impact; As such, a complete rework of the Private Partner and the Construction Contractor's transportation solution in the form of a multi modal solution was developed, making best use of an appropriate mix of road, marine and rail means, as a function of the type of pieces (concrete segments or steel box girders) to be transported and the origin point; A table summarizing the Private Partner and the Construction Contractor's Offsite Transportation Strategy is reproduced below for information: Figure 1 : Offsite Transportation Strategy No aeutes expt a5 seca ports ar not gute fot |” Spe tr pono we tia soxoon “om aowrciess gras Sa ingore aaa os | wiles condions and the spring sea nw ee Bane tenga pec an so many ‘out regat ese om 80th Sm She Eeerarre | "95% |” cent nace + Roo rm pe emag aa tect oe emg {reine ratonc eee nae ty ‘Soni avers cmv gues han we THCET koag> ob Due to the weight limitations imposed by JCCBI and the MTMDET, the Private Partner and the Construction Contractor have implemented the above165. 166. 167. 168. 169. 170. 174 -36- detailed revised transportation strategy which have the effect to cause substantial additional costs for Private Partner and the Construction Contractor; The Categories of Costs Impacted by the Unforeseen Events Numerous categories of costs are materially increased by the changes to the transportation strategy following these weight limitations, including, at the Private Partner and the Construction Contractor's current knowledge, the following categories, which could be adjusted in due course based on the supporting evidence to be adduced at trial: |. Direct Costs - Transportation, Mitigation Measures and Insurance () Labour Given that the implementation of a multi modal transportation strategy is required to achieve the Project Work in due time, additional labour is essential to accomplish some further work not initially planned (hereinafter « Additional Labour Team »); Additional Labour Team is composed of one foreman, six ironworkers and two operators; (ii) Staff (Logistic, Support and Administration Team) In order to manage all the additional transportation operations, a logistics team has to be implemented to accomplish many operations that was initially supposed to be performed by using a DDP delivery sequence; This includes also the costs for the support and administration team such as, without limitation, additional contract administrator, cost controller and claim specialist. (iil) Marine equipment and services The logistic marine operations required arising from the weight limitations can only be performed by renting or purchasing additional marine equipment (barges, tug, multicat boat, etc.) and by retaining additional service providers (work boats and patrols, crew, naval engineering, etc.) to deal with these additional marine operations and equipment; (iv) _ Rail transportation In consideration of Canam and Marmen rail siding, the box girders will be directly loaded on railcars at their yard for all girders above 65 MT that fit on a railcar, which involves a transport from either Québec or Trois-Riviéres to the Port of Montreal,172. 173. 174, 175. BLS aie Due to surcharge and delays caused by the travelling of the box girders by the Canadian National (the « CN ») D9 train, the overhang of box girders in every loaded wagon and the permit that must be obtained prior to the CN acceptation to transport an over dimension bulk wagon, additional costs will be engaged; (v) Road transportation For the West Approach, all items with a nominal weight between 48 MT and 65 MT will generate the following additional costs because of the weight limitations imposed by JCCBI and the MTMDET, including without limitation: (a) Additional borough permits at $216 each; (b) Mandatory study permit submitted and approved by the A30 permitting Authority to obtain authorization to travel via the A30. This is in addition to the fees charged by axles, precisely $80/axle; (©) Additional travel time which result in both distance and time costs; (d) Requirements for road modifications, additional private escort and police escort are needed to use the road network in the City of Montreal; and (e) The mandatory hours of travelling in the City of Montreal road network must be taken into account, as truck drivers have the obligation to travel at night and then spend several hours waiting for the Site operations to commence in the morning as there is no safe unloading of major cargo at night; (vi) Port operations Given that the implementation of a multi modal transportation strategy is required to achieve the Project Work in due time, port operations in Québec City, Trois- Rivieres, Sorel and Montreal (the “Ports’) will have to be modified in ways that will generate additional costs in each of these ports, including, without limitation, additional storage costs; The Private Partner and the Construction Contractor will also have no other choice but to incur additional costs in the transportation of complex girders in each of the Ports. These additional costs may result from, without limitation, accomplishment of self-unloading hydraulic trailers on to support beams and stools, use of Self-Propelled Modular Transporters (“SPMT"), and shore crane as well as increased storage and operating fees; (vil) West Jetty Storage176. 177. 178. 179. 180. 181 182. 183. Bs - 38- Considering the fact that the strategy of just in time delivery by road for the girders is no longer applicable because of the weight limitations imposed by JCCBI and the MTMDET, a greater storage area needs to be secured in proximity of the West Approach; Around 30 girders can be stored close to the West Jetty on the existing highway and a high rotation of the girders is projected to always ensure that all the girders are on Site prior to be needed; Furthermore, with the additional girders transiting, the West Jetty must have a fully dedicated combilift which will be going back and forth between the A15 storage area and the West Jetty. Several sets of support beams and stools will also be required; In addition, the West Jetty will now be receiving all girders above 48 MT by barge (vii) Subcontractors and manufacturers additional expenditures Considering the ramifications of the limitations on the Champlain Bridge and the complexity of the logistics solution elaborated in virtue of the weight limitations, the fabricators had to adapt themselves by increasing their storage capacity, hiring additional staff and adapting to the inability to expedite as initially planned by the transportation logistios strategy; (ix) Repairs due to Transportation and Handling Due to the multiple handling resulting from the use of various transportation as well as storing the pieces in various locations involved extra costs for repairs of the goods being moved; (x) Mitigation and Acceleration Measures © Precast Yard Due to the weight limitation imposed by PUCCI and the MTMDET, the activities for construction of top pier segment (41 segments) are performed in the Precast Yard area instead of originally planned by supplier BPDL. The impacts of casting these segments at the Precast Yard are, without limitation, related to reconfiguration and set-up of casting line #3 and surrounding areas to accommodate this additional scope of work and the time and resources required to perform the additional scope. * Cable Stay Site184. 185. 186. 187. 188. 189. 190. 191 192. BLG oor Due to the weight limitations imposed by JCCBI and MTMDET, it was impossible for the Private Partner and the Construction Contractor to obtain the special permits for transporting the pylon segments from BPDL to the cable stay site; These weight limitations have caused the Private Partner and the Construction Contractor delays on the delivery of pylon segments to the main span tower (‘MST’) of the cable stay bridge; Considering both the financial impact of the changes to the transportation strategy resulting from the weight limitations and the expected impact of the performance schedule, the Private Partner and the Construction Contractor diligently and proactively implemented mitigation and acceleration measures, when appropriate and feasible; These mitigation measures deal with transportation, storage, handling and design of various NBSL’s components and re-sequencing of the construction activities affecting, inter alia, pylon segments, temporary bent design, back span, lower crossbeam, main span, stay cable components, pier segments, steel box girders and precast slabs; The Construction Contractor and the Private Partner have also decided, as mitigation measure, to pour precast segments 24 to 33, North and South (20 segments total), at the MST Jetty; In addition, the limitations associated with the weight limitations imposed by JCCBI and the MTMDET generally impede acceleration attempts to secure the NBSL Substantial Completion Date; * West Approach Due to the weight limitation imposed by JCCBI and the MTMDET, various mitigation measures have been or will be implemented in order to reduce the impacts of these unforeseen events; The impacts are, but not limited to, delivery (intermediate locations), multiple handling, additional storage areas and construction re-sequence of the precast pier segments (BPDL), steel "box" girders (Canam) and precast slabs (BPDL) components, congestion in the West jetty, work interruption due to segments coming on barges to the West jetty and additional crew, equipment and miscellaneous material as above work was not foreseen; * Pylon Segments Transportation Due to delays and the issues associated with the unforeseeable events, the Construction Contractor and the Private Partner have decided, as mitigation193. 194, 195. 196. 197. 198. 199. -40- measure, to deliver the MST Pylons Segments from BPDL to the Port Sorel via both the St Lawrence River and the Seaway, using, amongst other equipment, a winch barge to pass the rapids at the level of the Victoria Bridge to bring the segments to the MST Jetty; Once the barge reached the MST Jetty, the segments were off-loaded from the barge using the MLC 650 crawler crane; Transfer of the segments from the barge to the base of the MST jetty using a dedicated low-bed trailer specifically mobilized on Site for the ‘land transportation” on the jetty, from the off-loading area to the MST jetty; (xi) Insurance There are two different types of insurance coverage for the Project; the core policies that include the Builders’ Risk, Wrap-Up Liability, Environmental Impairment Liability and Professional Liability Insurance, and the Construction Contractor's insurance policies that include the Hull & Machinery, Protection & Indemnity, Charterers Liability, Contractors Equipment, TOLL (Terminal Operations Legal Liability) and Cargo/DSU; The insurance costs are based on the various premium adjustment mechanisms provided for in the insurance policies in effect during the DB period; I, Contingency, Risk and Indirect Costs The cost estimate includes an amount for the transfer of the operational risk from the Authority to the Private Partner and the Construction Contractor, any applicable contingency for operation cost not already detailed in the cost estimate as well as the profit margin; Extension of Time Despite the deployment of mitigation measures and acceleration measures, it is still possible that the NBSL Substantial Completion by the NBSL Substantial Completion Target Date (December 1, 2018) will not be met; The Private Partner and the Construction Contractor therefore reserve their respective right to seek relief from their obligations or an extension of time, or claim compensation, in light of the occurrence of the Supervening Events and Works Change in Law described in these proceedings; Liquidated Damages ‘As per the Project Agreement, if the Private Partner misses the NBSL Substantial Completion Target Date, Liquidated damages are payable;201 202 -At- Considering that the weight limitation imposed by JCCBI and the MTMDET trigger the delay in the construction of the cable stay bridge (schedule critical path of the Project) which can likely compromise the NBSL Substantial Completion Target Date, the Private Partner and the Construction Contractor should be relieved from the payment of any liquidated damages as per the Project Agreement and the Construction Contract; The present judicial demand is well founded in both fact and in law. PART VI: CONCLUSIONS FOR ALL OF THE REASONS SET-OUT HEREIN, THE PRIVATE PARTNER AND THE CONSTRUCTION CONTRACTOR PRAY THIS COURT TO: A. DECLARE that Defendant Her Majesty The Queen in Right of Canada has breached is obligation to act in good faith, to treat the proponents equitably and fairly as well as to collaborate with the Private Partner and the Construction Contractor by either failing, choosing not to or neglecting to disclose the MTMDET March 5, and April 9, 2016 letters (Exhibit P-12 and Exhibit P-14) or the information contained ‘therein to the Private Partner and the Construction Contractor during the Request For Proposals (‘Contract A") and after the Commencement Date ("Contract B"); DECLARE that Defendant Her Majesty The Queen in Right of Canada’s failure to disclose in a judicious fashion the MTMDET March 5, and April 9, 2015 letters (Exhibit P-12 and Exhibit P-14) or the information contained therein to the Private Partner and the Construction Contractor during the Request For Proposals (Contract “A") and after the date of the Commencement Date (Contract “B") constitutes a Supervening Event, pursuant to the terms of the Project Agreement; DECLARE that Defendant Her Majesty The Queen in Right of Canada has breached its obligations to act in good faith as well as to collaborate with the Private Partner and the Construction Contractor by either failing to, or choosing not to or neglecting to disclose The Jacques Cartier and Champlain Bridges Incorporated's restrictions pertaining to the transport of oversize loads over the Champlain Bridge during the Request For Proposals (Contract “A") and after the date of the Commencement Date (Contract "B");; DECLARE that Defendant Her Majesty The Queen in Right of Canada’s failure to disclose in a judicious fashion The Jacques Cartier and Champlain Bridges Incorporated’s restrictions pertaining to the transport of oversize loads over the Champlain Bridge during the Request For Proposals (Contract A") and after the date of the Commencement Date (Contract “B") constitutes a Supervening Event, pursuant to the terms of the Project Agreement;-42- DECLARE that the new and restrictive weight limitations imposed by The Jacques Cartier and Champlain Bridges Incorporated prohibiting heavy vehicles that fall under a permit Class 5, Class 6 and Class 7 (on a case by case basis)as per rating of the SAAQ from crossing the Champlain Bridge, constitute a Works Change in Law, as defined in the Project Agreement; CONDEMN Defendant Her Majesty The Queen in Right of Canada to pay to the Private Partner the amount of § 123,885,290.99 as damages, sauf 4 parfaire, with interest and the legal indemnity provided for by the Quebec Civil Code; RESERVE the Private Partner’s rights to claim any other contractual or legal relief to which it may be entitled pursuant to the Project Agreement or to the Law, including but not limited to an extension of time; THE WHOLE WITH ANY AND ALL COSTS, INCLUDING THE COSTS OF ANY AND ALL EXPERT COSTS, INCURRED BY THE PRIVATE PARTNER AND THE CONSTRUCTION CONTRACTOR, BLS Montréal, March 28, 2017 (S) BORDEN LADNER GERVAIS s.r. Borden Ladner Gervais LLP Lawyers for the Private Partner and the Construction Contractor (Plaintiffs) «OPI CERTIFILE CONFORNE Borden Ladner Gervais s. r.|-43- SUMMONS (Art, 145 and following C.C.P.) Take notice that the plaintiff has filed this originating application in the office of the Superior Court in the judicial district of Montréal You must answer the application in writing, personally or through a lawyer, at the courthouse of Montréal, located at 1 Notre-Dame Street East, within 15 days of service of the application or, if you have no domicile, residence or establishment in Québec, within 30 days. The answer must be notified to the plaintiff's lawyer or, if the plaintif is not represented, to the plaintiff. If you fail to answer within the time limit of 15 or 30 days, as applicable, a default judgement may be rendered against you without further notice and you may, according to the circumstances, be required to pay the legal costs. In your answer, you must state your intention to: negotiate a settlement; propose mediation to resolve the dispute; defend the application and, in the cases required by the Code, cooperate with the plaintiff in preparing the case protocol that is to govern the conduct of the proceeding. The protocol must be filed with the court office in the district specified above within 45 days after service of the summons or, in family matters or if you have no domicile, residence or establishment in Québec, within 3 months after service; + propose a settlement conference. The answer to the summons must include your contact information and, if you are represented by a lawyer, the lawyer's name and contact information. You may ask the court to refer the originating application to the district of your domicile or residence, or of your elected domicile or the district designated by an agreement with the plaintif. If the application pertains to an employment contract, consumer contract or insurance contract, or to the exercise of a hypothecary right on an immovable serving as your main residence, and if you are the employee, consumer, insured person, beneficiary of the insurance contract or hypothecary debtor, you may ask for a referral to the district of your domicile or residence or the district where the immovable is situated or the loss occurred. The request must be filed with the special clerk of the district of territorial jurisdiction after it has been notified to the other parties and to the office of the court already seized of the originating application.-44- If you qualify to act as a plaintiff under the rules governing the recovery of small claims, you may also contact the clerk of the court to request that the application be processed according to those rules. If you make this request, the plaintiff's legal costs will not exceed those prescribed for the recovery of small claims. Within 20 days after the case protocol mentioned above is filed, the court may call you to a case management conference to ensure the orderly progress of the proceeding. Failing this, the protocol is presumed to be accepted. In support of the originating application, Plaintiffs intends to use the following exhibits: Pet: P.2: P-3: Ped: P-8: P.9: P-10: Pott: P12: BLS Excerpt from the Registre des entreprises du Québec for Signature on the Saint-Laurent Groupe G.P.; Excerpt from the Registre des entreprises du Québec for Signature on the Saint-Lawrence Construction G.P.; Excerpt of the ministére des Transports du Québec, de ia Mobilité Durable et de I'Electrification des Transports (the « MTMDET »)’s website; Excerpt of the Jacques Cartier and Champlain Bridges Incorporated (‘JCCBI’Y)'s website; July 11, 2014 NBSL Corridor Project Constructability Report to Infrastructure Canada (the “Constructability Report’); Section A4,5 (ji) (Construction Approach and Staging Plan) of the Private Partner's February 11, 2015 Technical Proposal; Various permits for oversize loads obtained for other projects in the recent past and a letter of Canam (en liasse); Electronic version of the Project Agreement entered into on June 16, 2015; Electronic version of the Construction Contract entered into on June 16, 2015; Watson Transport hors normes’ July 7, 2015 Fee Proposal and Preliminary Route Analysis (the "Watson Report’); Excerpts of the July 21, 2014 Request For Proposal for the NBSL Project; March 5, 2015 letter from the MTMDET to Infrastructure Canada;P13: P14: P15: P16: Paz: P18: P19: P-20: P.21: P-22: P-23: P.24: P.25: P-26: P.27: P.28: P.29: P-30: P34: P-32: BLS 45 - Table Summarizing Meeting Requests and Enquiries Submitted by all Proponents during the RFP and attached documentation (en liasse) April 9, 2015 letter from the MTMDET to Transports Canada; June 27, 2016 request for information to the MTMDET; Permit applications and related SAAQ responses; The Private Partner and the Construction Contractor's notices of July 8, 2016; July 15, 2016 letters from the Construction Contractor to the Private Partner and from the Private Partner to the Authority (en liasse); July 22, 2016 letter from the Authority to the Private Partner, July 28, 2016 letter from the Authority and attached MTMDET Letters; Transportation solution submitted to the MTMDET on September 8, 2016 and related emails (en liasse); MTMDET's September 28, 2016 email; Excerpt of Infrastructure Canada's website; 2016-2017 Report on Plans and Priorities of Infrastructure Canada; Minutes of the April 26, 2016 meeting between JCCBI and the Construction Contractor; Simplified Guide to the Regulation respecting special permits; May 12, 2016 letter from JCCBI to the Construction Contractor; ‘The Private Partner and the Construction Contractor's notices of May 20, July 14 and July 29, 2016; August 8, 2016 letter from the Authority to the Private Partner; September 30, 2016 Press Release; JCCBI's Table pertaining to the Permit Requests for heavy vehicles to cross the Champlain Bridge since January 1, 2013; JCCBI's 2015-2016 Annual Report;age P-33: April 7, 2016 Press Release; P.34: JCCBI's September 30, 2016 PowerPoint Presentation; P.35: The Private Partner and the Construction Contractor's notices of July 14 and August 10, 2016; P.36: Table of the Private Partner's costs estimates, 4 parfaire; These exhibits are available on request. If the application is an application in the course of a proceeding or an application under Book Ill, V, excepting an application in family matters mentioned in article 409, or VI of the Code, the establishment of a case protocol is not required; however, the application must be accompanied by a notice stating the date and time it is to be presented. Montréal, March 28, 2017 (S) BORDEN LADNER GERVAIS s.r. Borden Ladner Gervais LLP Lawyers for the Private Partner and the Construction Contractor (Plaintiffs) PIE CERTIFILE CONFORME Borden Ladner Gervais s. r. | BLSstooonseos ng. aes SIBAJO9 JaUpe7 Uapsog vege RL ys an #p2429 30 TeaaLOK oe! ‘i nauaneg €7 209001 91 HO4 AdOD $ qunowy (499 Buymojjos pue Ly Hv) SNIGAADONd V ONILVNIDINO NOILVONddy Twiolanr swuepusieq, | VOVNV9 TWHIN39 ABNYOLLY VOYNV9 40 LHOR NI N33ND SH. ALSSPVIN BSH SA SHAUL, ‘d'9 NOLLONAASNOO BONSYMV7 LNIVS 3H1NO SYNLVNOIS pue- Jepuoy Jo yuIsiG | 1ynoo yOlMadns