Introduction

On November 13, 2025, the Court of Appeal[1] reversed a judgment of the Superior Court[2] and ordered the ministère des Transports du Québec (“MTQ”) to pay the amount of $379,261.08[3] to the general contractor Construction BSL inc. (“BSL”). Both Courts agreed that the MTQ had withheld critical information from bidders regarding the condition of the land where the work was to take place.

The Facts

BSL was awarded a $2,817,425 contract by the MTQ following a public call for tenders for the rehabilitation of two bridge ramps located in Gatineau.

During the work, BSL encountered a major issue involving water management. A large volume of water accumulated in the embankments, requiring constant and prolonged pumping. This information regarding excessive water was never disclosed in any of the call-for-tender documents. In addition, the MTQ had not commissioned any geotechnical study—an omission that would later become central to the dispute.

As work progressed, BSL submitted multiple requests for technical changes to the MTQ. BSL maintained that the call for tenders contained neither a geotechnical study nor information relating to water management constraints, and it requested such a study to determine the appropriate work method.

The MTQ rejected BSL’s request for additional costs, asserting that BSL should have adapted its work methods to the site conditions and sought expert assistance if necessary.

Decision in First Instance

The Superior Court partially granted BSL’s application and ordered the MTQ to pay $189,630.54. The Court found that the MTQ had breached its duty to inform by failing to disclose a critical element necessary for the execution of the work. It ordered an equal apportionment of liability, noting that BSL should have sought clarification before submitting its bid.

Decision on Appeal

The Court of Appeal overturned the apportionment of liability and held the MTQ fully responsible for BSL’s claim.

As a public contracting authority, the MTQ is subject to an enhanced duty to inform, given its expertise in roadwork and its exclusive control over plans and specifications. It was therefore required to disclose the specific soil conditions or, at the very least, to inform bidders that no geotechnical study had been conducted.

The presence and management of a significant quantity of water was a determining factor that had not been disclosed by the MTQ. The Court of Appeal held that this information should have been communicated to bidders, as it could affect the cost of the work, the chosen method of execution, and the feasibility of the project.

Moreover, the call‑for‑tender documents contained no indication that would have prompted a reasonable contractor to inquire further or carry out additional verification, since nothing suggested the existence of the water-related issue encountered by BSL.

Unlike cases in which shared liability is justified, there was no evidence here that BSL had ignored an obvious warning sign or failed to act diligently.

Key Takeaways

This decision reiterates the heightened duty to inform imposed on a public contracting authority. In the context of a public call for tenders, any information that may influence the nature, cost, or duration of the work must be disclosed. Furthermore, a contractor cannot be expected to guess the presence of an abnormal condition if the contractual documents contain no clues or warnings to that effect.

This case also confirms that the liability of the contracting authority may be triggered  even in the absence of intentional wrongdoing; it is sufficient that a determining piece of information was not communicated.

In summary, this Court of Appeal decision becomes an important reference in the field of public construction contracts. It reinforces the jurisprudential trend emphasizing the enhanced duty to inform incumbent on public owners in the context of public procurement[4].

[1] Construction BSL inc. v. Attorney General of Québec (Ministère des Transports du Québec), 2025 QCCA 1438.

[2] Construction BSL inc. v. Procureur général du Québec, 2024 QCCS 2398.

[3] Amount plus taxes, interest at the legal rate, and the additional indemnity under article 1619 of the Civil Code of Québec as of January 14, 2020.

[4] Construction et pavage Portneuf inc. v. Procureur général du Québec, 2023 QCCS 3652.