Articles

On the evening of December 3, 2015, Ontario’s Construction Bar had the pleasure of attending a panel discussion with Robert Otruba (FTI Consulting Inc.), Gerard Boyle (Revay and Associates Ltd.), and Richard Fogarasi (Knowles Consultancy Services Inc.), who shared their insight into how experts analyze delays encountered in complex construction projects.

A lawyer representing a subcontractor in a construction dispute should remain informed about the lien rights of all subcontractors and contractors on a project, or the status of any registered liens, as this information can directly impact the limitation period of their client’s breach of trust action.

The Courts want to protect the rights of parties who bundle lien and non-lien claims into one action. Though discretion exists to dismiss an action in its entirety, such discretion ought to be exercised with a view to case law developed under rule 24.01 of the Rules of Civil Procedure.

The new organizing principle of good faith and the specific duty of honesty in the performance of contractual obligations are arguably not modest, incremental changes to the common law. These new duties could introduce an element of unintended uncertainty into construction contract performance where breaches of these new duties are alleged, potentially leading to less predictable results at trial and at arbitration.

The construction and insurance industries may have to wait for further clarity in interpreting and applying the ‘course of construction’ or ‘builder’s risk’ exclusion clauses.