Executive Summary: Key Legal and Evidentiary Issues

• Validity and opposability of the bankruptcy trustee’s assignment of Coffrage Provincial inc.’s contractual claim to Groupe Mario Bernier inc.
• Characterisation of subsoil conditions as “conditions manifestement différentes” and allocation of geotechnical risk between the MTQ and the contractor.
• Scope of the MTQ’s obligation to inform versus the contractor’s duty to investigate, interpret limited borings and prudently manage bidding risk.
• Appropriateness and execution of the chosen temporary support method (caissons de tranchée) and its causal role in delays, safety incidents and extra costs.
• Legitimacy and quantum of delay penalties and special holdbacks in light of extended timelines largely driven by unforeseen ground conditions.
• Proof and quantification of extra costs (labour, equipment, fuel, professional fees, winter protection, signalisation) and of a limited award for troubles and inconveniences.

Facts and contractual background

Groupe Mario Bernier inc. acted as assignee of Coffrage Provincial inc., a civil engineering contractor active in road, bridge and formwork projects. Coffrage had obtained, as lowest bidder, a public contract from the Ministère des Transports du Québec (MTQ) for the repair of culvert P-12503 on Route 173 over the Doyon stream in Saint-Joseph-de-Beauce. The contract, governed by the MTQ’s Cahier des charges et devis généraux (CCDG), was a mixed unit-price/forfait arrangement valued at 442 494,90 $ (before taxes), with long and short completion deadlines backed by cumulative daily penalties for delay. The main tasks included demolition of existing headwalls and end walls, partial demolition and extension of the culvert, and construction of new headwalls and end walls.
The MTQ’s tender package comprised general instructions, special administrative and technical specifications, plans and a November 2016 geotechnical report by Englobe. Only two borings had been drilled, in the roadway above the structure rather than at the exact locations of the works. The tender documents repeatedly stated that quantities were approximate, that soil and rock formations had natural variability, and that drilling results were only exact at the points where they were made. Contractors were told to interpret borings themselves, carry out their own additional investigations if needed, and assume the risk for protecting and relocating utilities, including a high-pressure gas line. At the same time, the plans indicated an approximate level of “roc sain” around 144,2 m, and the bordereau estimated relatively modest quantities: 55 m³ of “excavation de première classe pour ouvrage d’art” and 40 m³ of concrete “coussins de propreté.”
Coffrage visited the site, reviewed the contractual documents and geotechnical report, and opted for a temporary support method using caissons de tranchée, viewed internally as the least expensive approach. The MTQ’s project engineer, noting that Coffrage’s bid was more than 20% below the MTQ estimate and that its allocations for site organisation and temporary supports were dramatically low compared to other bidders, warned Coffrage and gave it an opportunity to withdraw; Coffrage chose to maintain its bid. The parties signed the contract in May 2017; by agreement, work was postponed to 2018, without changing the contract price except for indexed elements.

Progress of the works and emerging difficulties

The MTQ authorised the start of work as of 8 July 2018, but Coffrage did not mobilise fully until later in July. Early coordination meetings reminded the contractor that it had to submit, in advance, detailed procedures for temporary supports, batardeaux and environmental protection, as well as exploratory pits to locate public utilities and components of the existing structure.
In early August 2018, Coffrage carried out exploration pits near the culvert and quickly perceived that the rock level was neither uniform nor at the elevations suggested by the plans; it described the rock as poor quality and irregular. The contractor asked the MTQ to suspend contract time while it reassessed its temporary works, but the MTQ refused, emphasising the inherent variability of rock and the limited number of borings disclosed in the tender.
Subsequent geotechnical inspections by Englobe in late August 2018 confirmed that on the downstream side the rock was significantly lower than the indicative 144,2 m level, with elevations around 142,9 m and 143,46 m. The soils above were remoulded silts, sands and gravels affected by water, and the report recommended excavating down to rock and filling gaps between rock and the underside of the new footings with concrete cushions. The MTQ’s surveillance engineer maintained the original underside-of-footing elevation, meaning the contractor had to dig deeper in some locations and then cast additional concrete to make up the difference.
Throughout the fall of 2018, site meetings, daily logs and photographs documented multiple technical challenges: rock elevations much deeper or higher than expected across short distances; highly irregular rock surfaces requiring stepped excavation; voids forming behind caissons due to loss of backfill; instability of talus and fissures near the roadway; and the need to install steel plates and concrete at the bottom of caissons to prevent material from washing out. The project was further complicated by the presence and protection of a high-pressure gas line, requiring special design of supports (including a “mur berlinois”), additional drilling and survey work, and close coordination with CNESST on safety.
CNESST intervened on several occasions, ordering first the suspension of work in part of the site and later a complete shutdown over concerns about the stability of temporary structures and the roadway. The engineer Annie Lavoie of DTA Consultants became more heavily involved from September 2018, preparing or revising support methods, certifying temporary works and dealing directly with CNESST and the MTQ’s surveillance team.
Despite these efforts, progress remained slow. The MTQ repeatedly criticised Coffrage’s planning, documentation and adherence to pre-approved methods, as well as incidents where crews deviated from the engineer’s procedures or lacked necessary equipment (for example, when a trench box deformed and had to be removed, causing further delays). By late 2018, Coffrage forecasted completion dates extending into December 2018 and then into early 2019, far beyond the original October deadline.

Soil conditions, risk allocation and the duty to inform

A central question was whether the subsurface conditions encountered—particularly the extreme variability in rock elevation and quality—constituted “conditions manifestement différentes” from those described in the contractual documents, such that they shifted part of the risk and entailed compensation beyond unit prices. The MTQ contended that rock is inherently variable, that the borings and geotechnical report clearly warned about variability and the limits of the data, and that a prudent contractor should have expected such variation and chosen methods accordingly.
The engineering expert retained by the MTQ opined that the tender package contained all necessary information for bidders to assess risk and that the observed variations in rock elevation, including a 0,63 m difference between the two borings, fell within the range commonly seen on similar projects. In his view, Coffrage erred by assuming a near-linear rock surface and by choosing a trench-box method ill-suited to variable rock; he also considered that the method was executed poorly in the field, aggravating instability and delays.
By contrast, DTA’s engineers (including Lavoie and Christian Tremblay) testified that the conditions encountered were far beyond what could reasonably be anticipated: at certain points the rock was more than 1,3 m lower than the plan’s indicative level downstream and up to 1,485 m higher or 1,643 m lower upstream, creating a difference of roughly 3 m over only a few metres of distance. This translated into over 175% more rock excavation and about 192% more concrete cushions than the bordereau estimates. In their view, nothing in the plans, specifications or borings suggested such extreme and localised variability, and for practical purposes the “approximate” elevation of 144,2 m had no real predictive value.
The court accepted that the MTQ, as a sophisticated public owner, owed a positive obligation of information under Quebec law, beyond merely avoiding misrepresentation. While the MTQ had disclosed the borings and included numerous warnings about variability and the limited scope of investigations, it had chosen to rely on only two borings located away from the work fronts and was itself warned by Englobe that more investigation would be needed to fully characterise subsurface conditions. The court found that the MTQ should have conducted or disclosed additional borings at the actual work locations or otherwise provided more adequate and sufficient information, and that merely pushing all uncertainty onto bidders was inconsistent with its duty to inform.
At the same time, the court held that Coffrage remained bound by its own duty to inform itself and prudently manage its bidding risks. It knew that no plans of the existing structure were available, that borings were limited and localised, and that the CCDG and special specifications emphasised variability and the need for contractors to interpret borings and, where necessary, carry out their own investigations. Coffrage nevertheless treated the indicative rock elevation as almost linear, did not seek clarifications before bidding, selected a support method unprecedented for this type of culvert rehabilitation and poorly adapted to varying rock elevations, and started work late, squandering schedule buffer time.
Balancing these obligations, the court concluded that there were indeed “conditions manifestement différentes” as to the rock, that the MTQ had breached its obligation of information by not adequately characterising and disclosing subsurface conditions at the work fronts, but that Coffrage also failed in its duty to diligently protect its own interests. Responsibility for the consequences of the differing site conditions was apportioned 65% to the MTQ and 35% to Coffrage, with any impacts tied purely to gas-line protection remaining entirely the contractor’s responsibility under the contractual clauses assigning utility risks to the contractor.

Contract performance, penalties and quantification of extra costs

Due to the combination of adverse ground conditions, method changes, CNESST shutdowns, and management issues, the works effectively ran until mid-March 2019 for the structural elements, with reinstatement and landscaping extending into June 2019. By then, Coffrage had substantially completed the contract but had been subjected to very large delay penalties and special holdbacks, resulting in payments of only 129 981,73 $ on a contract initially priced at 442 494,90 $. The MTQ’s final account (Demande de paiement 9 finale) even suggested that, on paper, the contractor theoretically owed money back to the MTQ.
In parallel, Coffrage went into bankruptcy in March 2020. The trustee entered into a cession de créances with Groupe Mario Bernier inc., assigning all of Coffrage’s rights of action in exchange for Groupe Mario Bernier assuming outstanding and future professional fees owed to its law firm and DTA Consultants. A bankruptcy registrar later authorised this assignment. The Attorney General argued that non-payment or late payment of those fees rendered the assignment conditional and invalid. The court rejected that argument, holding that the payments were consideration, not suspensive conditions, and that the assignment was valid and opposable under the Civil Code and Code of Civil Procedure.
On the merits, the court examined a detailed extra-cost claim prepared by DTA, supported by invoices, site diaries and internal accounting reports. It considered numerous heads of claim: additional use and transport of a boom truck; extra concrete for stabilising caissons and talus (excluding portions linked to utility protection); fuel, electricity and winter heating for the extended period of works; professional fees of surveyors and engineers; rental of extra site facilities, trench boxes and equipment; concrete pumping; signalisation; transport related to extra purchases; additional labour and site supervision; travel, mileage and accommodation; and modest “troubles et inconvénients.” The court made significant downward adjustments where evidence was weak, where costs overlapped with unit-price items (excavation and cushions) or where expenses related entirely to the gas line or to time that Coffrage itself had to bear. It then applied the 65% apportionment factor to those heads of damage attributable to differing ground conditions.
In parallel, the MTQ, responding to questions from the court, revisited its calculation of penalties and certain special holdbacks. Shortly before judgment, it agreed to remove some penalties relating specifically to extra excavation and cushions, and to cancel other penalties (for example, around materials and resident releases, CNESST and CCQ attestations) that were either not pursued in the claim or no longer justified. It also accepted to pay certain amounts for winter protection already recognised under the contract. These concessions were taken into account in the court’s final dispositive orders.

Outcome and monetary award

Ultimately, the Superior Court held that the MTQ had partially breached its obligation of information regarding subsurface conditions, that the rock conditions encountered were indeed “manifestement différentes” from those described in the contract documents, and that these conditions significantly complicated and extended the works. However, it also found that Coffrage bore a substantial share of responsibility—35%—for its own insufficient risk management, choice and execution of an ill-suited temporary support method, and late mobilisation, and that the contractor alone bore the risk and cost of protecting the gas line and other utilities under clear contract clauses.
After applying this allocation of responsibility and carefully scrutinising each head of claim, the court ordered the Procureur général du Québec, for the MTQ, to pay Groupe Mario Bernier inc. 433 324,80 $ in damages (including the effect of cancelling part of the penalties), plus interest and the statutory additional indemnity from the date of service. It further ordered payment of 31 908,88 $ corresponding to certain cancelled penalties that had not been part of the original claim, with interest from the date of judgment, and 31 668,60 $ for winter-protection measures under the contract, also with interest from judgment, in addition to costs. In total, the successful party, Groupe Mario Bernier inc., obtained principal monetary relief of 496 902,28 $ against the MTQ, to which interest, additional indemnity and court costs are to be added.