Category Archives: Construction

Construction Liens 101

You will often hear aggrieved parties in various commercial / civil disputes assert, forcefully, that they want to place a lien upon the property of the party that harmed them.  As if liens are available at large and applicable to any legal dispute.  Not so fast!!

Making a Claim for Extras? Follow the Contract!

Ross-Clair v. Canada (Attorney General) (“Ross-Clair”)[1] is a March 2016 Court of Appeal decision that reaffirmed the Court’s willingness to enforce specific contract requirements in order for contractors and subcontractors to secure payments for extra work. Specifically, the contractor’s correspondence to the owner regarding extra work completed was deemed to include insufficient particulars, contrary to the contract, thus disqualifying the contractor for any claim for compensation. The contractor also delivered a fulsome report detailing its claim for extras, but the report was provided well past the deadline set forth in the contract and, therefore, was given no weight by either the application judge or the Court of Appeal.

Pay When Paid Clauses

Pay when paid clauses are highly contentious provisions in the construction industry that all sub-contractors need to be aware of.  In the normal course, a contractor must continue to pay a sub-contractor whether or not the contractor has been paid.  A pay when paid clause (PWP clause) will alter the normal course and permit the contractor to withhold paying a sub-contractor until the contractor is paid by the party above it in the construction pyramid.

Contractor/Sub-Contractor Entitlement to Payment for “Extras”

In a “fixed price” or “stipulated price” contract the contractor has agreed, by way of successful bid or non-bid agreement, to perform the work set out in the contract documents (which would include tender documents) for a fixed price.  [Note the term contractor will be used herein, although the term sub-contractor could be substituted throughout].  Further, below sets out the general or typical rules, but keep in mind that the specific contract rules the day and it may modify what is and is not compensable extra work and the steps that are required to be taken by a contractor who seeks to claim for extra work.  If you have an issue regarding the interpretation of a construction contract or with respect to a claim for the payment of extra work you should seek legal advice as soon as possible.

Contractor Right to Repair Deficiencies

Regardless of the size of a project, deficiencies happen.  It is important that when they do, the parties understand their respective obligations.  Ideally, when a deficiency is identified the owner or general contractor will inform the responsible contractor of the deficiency and the responsible contractor will take steps to remedy same to all parties’ satisfaction.