by Misty Alexandre
Robertson Stromberg LLP
Like the onus carried by the proverbial middle child, the Consultant is bound to wear the unbiased hat of fairness as they administer the typical construction contract. Perhaps this is why the Courts have consistently paid such deference to the role when disputes reach the courts. A recent Alberta Court of Queen’s Bench decision has confirmed that tradition and provided a few clues as to why the courts typically take a back seat to the findings of a Consultant under a contract.
In ASC (AB) Facility Inc v. Man-Shield (Alta) Construction (2018 ABQB 130), the primary issue considered by the Court was whether the Court should make its own findings or defer to the findings already made by the Consultant.
Man-Shield was contracted to construct a retirement residence in Calgary for the Owner, ASC (AB) Facility Inc. Page+steele/IBI Group Architects acted as the Consultant under the terms of the CCDC2 Contract. The dispute centred around 2 invoices – the former submitted prior to ManShield’s termination from the project, and the latter submitted quite some time thereafter. Relying upon the Consultant’s review and determinations on the invoiced work, the Owner withheld payment on the basis that some of the invoiced work was either deficient or incomplete.
Man-Shield argued that deference to the Consultant’s findings was only applicable during the life of the contract, and that no deference is owed following termination.
Justice Antonio, following various past precedents, concluded that deference to the Consultant continues after termination of the contract for a number of reasons, notably:
• The Consultant has the best opportunity and expertise to determine the matters at stake, and the benefit of the best evidence;
• The terms of a CCDC2 contract clearly show an intention by the parties “that the Consultant’s decisions will be binding at least absent demonstrable and significant error, legal or factual”;
• The parties, in the context of a stipulated price contract, have “subjected themselves to the expertise of a payment certifier and not to a “nuts and bolts” accounting before court”; and
• Prudent policy considerations require deference to the Consultant’s findings, as “to defy or ignore certifications would “encourage litigation of a very harassing kind, and probably to a great extent””.
While the Court will generally defer to the Consultant on decisions of fact or contractual interpretations, the situation is slightly different for a Consultant’s determination of law, as presumably the Court would be in a position of greater expertise.
The Court confirmed that the Consultant was not held to a standard of perfection. Rather, the Consultant’s decisions are persuasive in the absence of contrary evidence or demonstrable and significant error.
Despite Man-Shield’s arguments on various aspects of the Consultant’s findings, it was ultimately unable to satisfy the onus of proving a “demonstrable or significant error” in those findings. As a secondary argument, Man-Shield attempted to discredit the Consultant by providing evidence that his numbers changed over time. The Consultant explained that such changes resulted from correction of superficial errors, or refinement of estimates, each time resulting in Man-Shield’s favour. Man-Shield’s efforts backfired on this aspect, as the Court reasoned that the Consultant’s openness to reviewing his numbers based on new information “supports an inference that he took his role seriously and performed it with objectivity.”
A Consultant’s decision is subject to challenge under the dispute provisions of a CCDC2 Contract. However, disputing parties should be aware of the general deference paid by the courts to a Consultant’s findings. On matters of fact or contractual interpretation, the burden of overturning a Consultant’s findings is a heavy one.
How to Avoid Challenges to your Will
by James Steele
Robertson Stromberg LLP, Saskatoon
Having a Will is meant to provide comfort, and to make sure your family gets their inheritance when you pass on. Yet all too often Wills are challenged in court. This can cause a lot of stress and family turmoil. However, there are things you can do to try to avoid your own Will being challenged.
A typical case?
I practise in the area of estate litigation. Let’s take a hypothetical but common scenario, similar to ones I have seen.
“Bill” is 85 years old and lives in Saskatoon. He is a widower and has a son and a daughter. His son lives in Ontario, and does not visit Bill often. Bill’s daughter lives in Saskatoon with her family.
In 2006, after his wife died, Bill made a new Will. It gave everything equally to his two children – a pretty standard Will. The children were aware of the 2010 Will.
In later years, Bill becomes more frail and more dependent. Bill gives up his driver’s license. His goes out of his home less and less. Bill relies on his daughter for medical needs, and errands and visits. Bill feels grateful. The son doesn’t see much of this, as he is living out of province. All the while, the son calls Bill on holidays, and notices Bill is more and more forgetful, although Bill is his cheerful self.
During this time, Bill make a new Will. He uses a homemade Will kit. He asks his daughter to buy a Will kit for him, and Bill fills it out. A friend of the daughter acts as one witness, and the daughter is the other witness (a bad idea, as shown below)
Bill leaves 80% to his daughter, and 20% to his son. He gives the daughter extra, because Bill is grateful to his daughter for the help, but still wants something to go to his son and the son’s family. Bill names the daughter as executor. Bill never tells his son about the new Will, not wishing to risk any turmoil in the family.
A challenge begins:
Bill passes away. The son learns of the new Will. The son has suspicions, and feels this unequal treatment couldn’t have been intended by dad.
The daughter tries to explain, but the son cannot help having concerns about whether his dad was taken advantage of. After all, Bill was forgetful on the phone. Thus, maybe Bill lacked mental capacity when he made the new Will? Or maybe pressure was put on Bill? After all, Bill was living alone, and maybe the daughter used her visits to pressure him?
The son decides to hire a lawyer to challenge the new Will. The daughter hires a lawyer to defend the new Will. Both sides go to court and eventually each spend tens of thousands of dollars in legal fees. Eventually they agree to a compromise, but it takes years, emotion and money.
What can we learn from the above scenario?
First, having a lawyer properly draft your Will, can be a good investment. A lawyer should know what questions to ask, and will keep good notes. The lawyer will meet with a Will-maker alone, and make sure the Will-maker is of a sound mind and is not acting under pressure. Then, if a challenge is later brought, the lawyer’s notes can be very helpful in clearing up any confusion.
The notes of a lawyer are more independent than evidence of the daughter. Right or wrong, any evidence of a beneficiary may unfortunately be seen as potentially conflicted, as she has a personal interest in upholding the Will. The other witness – the daughter’s friend is also not totally independent, as she is a friend of the daughter.
The lawyer will also make sure the Will is executed properly (i.e. the right wording is used to describe assets, and the proper signatures are applied). Here, for example, the daughter should not have acted as a witness. A person who receives a gift under a Will, should not be a witness, as it can lead to that person’s gift being void.
Finally, a Will-maker should tell his or her children about all new Wills, and not leave surprises to be discovered only after the Will-maker has passed on. In this case, if Bill had told his son what his new Will said, the son could have asked Bill questions to clear the son’s concerns. When a Will-maker has died without explaining a new Will to a disappointed child, too often the child assumes the worst.
People choose to challenge a Will for several reasons. The most common grounds are concerns of lack of mental capacity, or concerns of improper pressure.
In my experience, many people wish to challenge a Will because they simply do not believe the Will-maker (who is often their parent) could have intended something which may seem unfair.
However, situations of suspicious family members can often be avoided. With the right planning and communication up front, you can better ensure that your wishes are smoothly followed when it counts the most.
Contacting a Lawyer on this Subject
James Steele practises in Saskatoon in the area of estate litigation, including will challenges, issues surrounding executors, joint account disputes, etc.
For more information on this subject or specific legal advice, contact James Steele at 1 306 933 1338.
The above is for general information only. Parties should always seek legal advice prior to taking action in specific situations.