The British Columbia Court of Appeal refused a contractor’s application to appeal an arbitration award arising from engineering design errors on the Pattullo Bridge replacement project. Fraser Crossing Constructors General Partnership sought approximately $23.7 million from engineering consultant Hatch Ltd. but received a corrected award of approximately $4.94 million plus interest.
In Fraser Crossing Constructors General Partnership v. Hatch Ltd., 2026 BCCA 420, the Court found that the contractor’s proposed challenges concerned the tribunal’s findings on causation and evidence rather than appealable questions of law. The decision illustrates the distinction between proving engineering errors and establishing the financial losses they caused.
Preliminary Design Errors and a $23.7 Million Claim
Fraser Crossing was the contractor for the Pattullo Bridge replacement project and retained Hatch to provide engineering services. Under their agreement, Hatch assumed responsibility for earlier design work performed by other engineering firms.
Fraser Crossing alleged that errors in the preliminary design underestimated the materials required to withstand earthquake forces. It argued that the resulting deficiencies caused its fixed-price bid to exclude substantial costs associated with additional construction materials.
The contractor claimed $23,682,072 in arbitration, representing the amount it maintained would have been included in its original bid had the preliminary design properly accounted for the required materials.
The tribunal found Hatch contractually responsible for errors involving seismic-force calculations, but accepted only part of Fraser Crossing’s claim for damages.
Why the Contractor Recovered Only $4.94 Million
The tribunal distinguished between establishing a breach of engineering standards and proving that the breach caused the claimed losses.
Fraser Crossing relied on the quantities of materials ultimately used in the final bridge design as a measure of what should have been included in its original bid.
The tribunal accepted that an error in applying the Japan Road Association method for calculating seismic forces caused the preliminary design to underestimate the materials required for the bridge piles. It found that Fraser Crossing would have increased its bid to account for those materials had the error not occurred.
However, the tribunal was not satisfied that the same error caused the claimed additional material requirements for other structural components, including the towers and piers. Subsequent design revisions also reflected further engineering analysis that was not shown to result from the proven breach.
The corrected arbitration award was $4,941,741.21 plus interest.
Why the Court Refused Leave to Appeal
Under section 59 of British Columbia’s Arbitration Act, an arbitral award may be appealed on a question of law where all parties consent or leave to appeal is granted.
Fraser Crossing argued that the tribunal had failed to properly quantify damages and challenged its treatment of engineering evidence, mitigation costs and soil densification.
The Court rejected these proposed grounds. The tribunal had not refused to quantify a proven loss; it had found that Fraser Crossing failed to establish causation for substantial portions of its claim.
The challenges therefore concerned findings of fact or mixed fact and law. Although a genuine misapprehension of evidence can raise a question of law, the Court found that Fraser Crossing’s particular argument challenged how the tribunal weighed the evidence.
The Court dismissed the application for leave to appeal.
The Arbitration Clause Did Not Establish Consent to Appeal
Fraser Crossing also argued that the parties had already consented to an appeal through their design services agreement.
The agreement provided that arbitration awards would be final except for errors of law, which could be appealed. The Court interpreted this language as recognizing the appeal mechanism available under the Arbitration Act, rather than granting advance consent to appeal.
The Court did not conclusively determine whether parties can provide valid advance consent to appeal a future arbitration award. It held that this particular agreement did not provide such consent.
Implications for Infrastructure and Construction Arbitration
The decision demonstrates the gap between a contractor or owner’s view of design-related issues and actual project cost impacts. Owners often wish to attribute to design errors the liability for every subsequent increase in project costs, but such claims are often reduced after careful scrutiny by a tribunal or court. Contractors pursuing design-related claims must always establish how specific breaches affected their original pricing assumptions and caused the losses claimed.
It also highlights the importance of precise arbitration clauses. Once a tribunal determines disputed questions of causation and technical evidence, the opportunities to challenge those findings on appeal are very limited.
ATAC LAW represents contractors, developers, project owners and engineering consultants in British Columbia construction disputes and arbitration and infrastructure project matters.
