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Judge questions Metrolinx’s urgency to cancel Bombardier contract

A Metrolinx LRV is shown being built in Thunder Bay in this recent handout photo.


The judge weighing whether to prevent Metrolinx from cancelling a $770-million contract with Bombardier on Tuesday questioned the agency's need for urgency.

The exchange came as the manufacturing giant sought a court injunction that would prevent the regional transit agency from ending a deal to build vehicles for Toronto light-rail lines.

The agency has long maintained that allowing Bombardier its injunction would delay the process such that Metrolinx would not be able to change suppliers later and still open the Eglinton Crosstown on time. But Ontario Superior Court Justice Glenn Hainey raised doubts when Chris Paliare, arguing for Metrolinx, said it needed to move quickly, and that the agency needed to be dealing with another supplier as soon as next month.

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"I don't get the urgency," said the judge. "You don't even have tracks [built]."

Metrolinx claimed in July that Bombardier was in default on the contract and in October filed a formal notice of intent to cancel the deal. Justice Hainey pointed as well to that four-month delay to question the need for a quick resolution to the issue.

The judge reserved his decision on the injunction. But his query gets to the heart of the debate.

Metrolinx says that Bombardier is in material default of the contract, having missed a number of interim deadlines. The company argues that it has turned around its production efforts and will meet the overall deadline needed to supply the vehicles in time for the Crosstown to open on schedule.

"I think, at the end of the day, it's not about a contract, it's about the people of Toronto," Bombardier spokesman Olivier Marcil said outside of court. "Will they get their [vehicles] on time, yes or no? And the question for us, it's crystal clear."

Metrolinx remains adamant that the company has failed.

"To be clear, Bombardier has defaulted on its contract," agency spokeswoman Anne Marie Aikins said in a statement. "Bombardier's [first] vehicle, which is already two years late, still does not meet the required basic engineering standards."

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The contract which is at issue dates to 2010. Valued at $770-million, with another $100-million in taxes added on, it calls on Bombardier to produce 182 vehicles. These were to supply light-rail lines along Eglinton, Finch, Sheppard and in Scarborough.

Since then, though, the transit landscape has shifted, with the proposal for an LRT in Scarborough being replaced by a plan for a subway and the other three projects delayed.

Bombardier argues that these changes mean that Metrolinx no longer needs all the vehicles, and certainly doesn't need them as quickly as the contract specifies, and is trying to wiggle out of the deal. They allege that there was agreement with the agency to change the delivery schedule.

But the agency says they can find places to use the extra vehicles, and that the real issue is chronic delays on the part of the company. Mr. Paliare, the Metrolinx counsel, said there were "never any changes" in writing to the agreed-upon delivery schedule.

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About the Author

Oliver Moore joined the Globe and Mail's web newsroom in 2000 as an editor and then moved into reporting. A native Torontonian, he served four years as Atlantic Bureau Chief and has worked also in Afghanistan, Grenada, France, Spain and the United States. More


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