Court battle over Low Level Bridge paint failure continues 15 years after makeover

A legal dispute over responsibility for the deteriorating paint on Edmonton's Low Level Bridge remains unresolved 15 years after the paint dried.

In 2006, the City of Edmonton hired Alberco Construction to rehabilitate the Low Level Bridge and apply industrial paint to prevent rust.

According to court documents, the paint was expected to last 20 to 25 years, but began deteriorating within the first year. 

In 2013, the city sued Alberco and others involved in the project for negligence and breach of contract.

The city also sued the paint supplier, Termarust Technologies, and the company that applied the paint, Clara Industrial Services, for breach of the five-year warranty.

Clara applied to dismiss the city's claim in 2018, arguing there had been an inordinate delay causing prejudice, meaning the city's delay in advancing the case had compromised the company's ability to defend itself. 

The Alberta Court of Queen's Bench dismissed the application ​last week.

"I find that Clara has not met its onus and has not established it has suffered significant prejudice through either the rebuttable presumption or the evidence presented of actual prejudice," Master in Chambers Lucille Birkett wrote in the Dec. 15 decision.

The city's chosen paint — Termarust 2100 — had performed well on the High Level Bridge, but did not hold up on the Low Level Bridge.

A 2018 report prepared by Stantec's Reed Ellis, an expert hired by the city, said "signs of coating failure were observed as early as 2008 and continued to become worse in 2009, 2010, and by 2011/2012 the failure had become extensive."

Following a warranty inspection in the summer of 2011, Clara and Termarust blamed each other for the deficiencies in inspection reports. Clara claimed the paint was defective; Termarust said the paint's application was the problem. 

In 2012, both companies indicated they would not assume responsibility for repairs until the cause of the problem was determined.

In its statement of claim, the city said that because of the paint problems, it had suffered an estimated $10 million in loss or damage, plus special damages of $250,000 associated with investigating the paint failure.

Part of Clara's argument to dismiss the city's action was that two key witnesses died since the filing of the claim.