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.
August 21, 2018 — Robertson Stromberg LLP is pleased to announce that 12 lawyers have been included in the 2019 Edition of The Best Lawyers in Canada. Since it was first published in 1983, Best Lawyers™ has become universally regarded as the definitive guide to legal excellence.
Best Lawyers has published their list for over three decades, earning the respect of the profession, the media, and the public as the most reliable, unbiased source of legal referrals. Its first international list was published in 2006 and since then has grown to provide lists in over 75 countries.
“Best Lawyers was founded in 1981 with the purpose of highlighting the extraordinary accomplishments of those in the legal profession. After three decades, we are proud to continue to serve as the most reliable, unbiased source of legal referrals worldwide,” says CEO Phillip Greer.
Lawyers on The Best Lawyers in Canada list are divided by geographic region and practice areas. They are reviewed by their peers on the basis of professional expertise and undergo an authentication process to make sure they are in current practice and in good standing.
Robertson Stromberg LLP would like to congratulate the following lawyers named to 2019 The Best Lawyers in Canada list:
- Misty S. Alexandre- Construction Law
- M. Kim Anderson- Insolvency and Financial Restructuring Law, Banking and Finance Law
- Christopher J. H. Donald- Corporate Law
- Melvin A. Gerspacher- Tax Law
- Allan M. Haubrich- Trusts and Estates
- Tiffany M. Paulsen- Family Law
- Jennifer D. Pereira- Insurance Law
- Leslie W. Prosser- Natural Resources Law, Corporate Law, Mining Law
- Reynold A. Robertson- Education Law
- Scott D. Waters- Banking and Finance Law, Corporate Governance Practice
- Gary D. Young- Insurance Law, Corporate and Commercial Litigation
- Kenneth K. E. Ziegler- Immigration Law
Back by popular demand, Misty Alexandre of Roberston Stromberg LLP will provide insight into some legal tips for getting paid and maximizing collection.
Trends in Construction Law
Friday, June 2
10:30 a.m. – 12:00 p.m.
The Annual Summer Meeting is the SCA’s signature event, offering sessions on the latest industry trends and innovations, industry meetings, and the chance to mingle with the most influential members of our industry from across Saskatchewan.
The 2017 meeting has a new format and agenda, packed with all your favourites:
Industry Association Meetings
New and Popular Education Sessions
SCA’s Annual Fishing Derby
Cocktail Mixing Class
The Saskatoon Construction Association offers its members a number of professional development courses. As part of this program, Jared Epp and Misty Alexandre will co-present a Construction Law course on The Saskatchewan Builders’ Lien Act on May 9.
This session is an overview of the purpose and function of the Saskatchewan Builder’s Liens Act, including a discussion of the types of construction activity which create lien rights, the process and procedure of registering a lien claim, enforcement of lien claims, the proper administration of holdbacks and a review of trust provisions arising under the Act. This session also includes a discussion of some of the most recent lien cases to come before the Courts in Saskatchewan and across Canada.
Misty Alexandre and Jared Epp were among the presenters at the Saskatoon Construction Association course Construction 101 on November 23.
Construction 101 is offered to all construction industry stakeholders looking to gain a greater understanding of the “big picture” including owners, contractors, sub-contractors, manufacturers, suppliers and service providers.
Misty Alexandre continues to support amateur sport in our province. She has accepted a position on the 2016 – 2017 Board of Directors for Sask Sport Inc., a federation of provincial sport governing bodies that works to ensure that all residents can participate in the sport of their choice.