The contractor on the Pattullo Bridge replacement has been denied permission to appeal an arbitration award over preliminary engineering work, leaving a corrected award of $4,941,741.21 plus interest against Hatch Ltd. undisturbed.
In Fraser Crossing Constructors General Partnership v Hatch Ltd., 2026 BCCA 420, Justice Riley of the British Columbia Court of Appeal dismissed both routes the contractor proposed: an appeal said to be authorized by the parties’ contract, and an application for leave under the Arbitration Act.
The October 27, 2026 ruling turned on the distinction between a legal question and a challenge to factual findings about what caused a loss. Fraser Crossing had claimed $23,682,072 in the arbitration. Riley found that its proposed appeal sought to revisit the tribunal’s conclusions about which design changes were attributable to engineering errors, rather than identify a separate question of law.
A claim about the bid price
Fraser Crossing engaged Hatch under a design services agreement for the bridge replacement project. Hatch assumed responsibility for earlier work by other engineering firms at the request-for-proposals stage.
The dispute concerned estimates of the forces the bridge design had to withstand during an earthquake and the quantities of construction materials included in the preliminary design. Fraser Crossing argued that engineering errors caused its fixed-price bid to understate the materials needed for the project.
The arbitration tribunal found Hatch contractually responsible for errors associated with that preliminary work. The remaining issue was which claimed losses those errors had caused.
Fraser Crossing’s case was not a claim for its increased construction costs as actually incurred. It sought the difference between its submitted bid and the higher bid it said it would have made with a properly prepared preliminary design. It used the final design and its material quantities as a proxy for what the earlier design would have contained without the errors.
The tribunal accepted that approach for the bridge piles. It found that, without the relevant error in applying the Japan Road Association method, the preliminary design would have included piles at least as large and capable as those ultimately used. It did not accept the same causal inference for other components, including the towers and piers.
The tribunal’s initial damages figure was subsequently corrected to $4,941,741.21 plus interest. The appeal application did not produce a new damages award or a finding about the bridge’s current safety.
Difficulty valuing a loss was not the problem
Fraser Crossing relied on the principle that a proven loss should not go uncompensated simply because its precise value is difficult to establish. It argued that the tribunal had found causation but then failed to do its best to assess the full loss.
Hatch responded that this misread the award. The tribunal had accepted causation for the piles, but not for the additional materials claimed for the other bridge components.
Riley agreed with Hatch. Read as a whole, the reasons showed that the contractor had not established the causal link for the full claim. Determining whether the evidence met the legal test for causation was a question of mixed fact and law, not an independent legal issue that could support this arbitration appeal.
The judge also rejected the premise that the tribunal had invented an alternative causation theory without inviting further evidence. It had considered Fraser Crossing’s own theory and accepted it only in part.
A related argument about mitigation costs did not change the result. The tribunal’s comments addressed the particular bid-price claim Fraser Crossing had advanced; they did not establish a general rule that mitigation costs are legally unrecoverable.
The final proposed ground concerned evidence about additional soil densification. Although a genuine misapprehension of evidence can raise a legal question under the Act, Riley found that this argument instead challenged how the tribunal had assessed and weighed the evidence.
The contract did not supply consent to appeal
Fraser Crossing separately relied on a contract provision making arbitration awards final except for errors of law that could be appealed to a court with jurisdiction. It argued that this amounted to both parties’ advance consent to an appeal under section 59 of the Arbitration Act.
Riley held that the provision merely recognized the statutory appeal route. Section 59 permits an appeal on a question of law where all parties consent or a Court of Appeal justice grants leave. The wording did not itself provide the consent Fraser Crossing needed.
The judge expressly left unresolved the broader question of whether a differently drafted arbitration agreement could validly give advance consent before an award is made.
Because none of the proposed grounds raised a question of law, the court had no jurisdiction to grant leave. Hatch succeeded on the application, while its liability under the corrected arbitration award remained in place.
