I N D E X

VI. CONCLUSIONS

V. PRACTICAL MANAGEMENT OF ISSUES

IV. TYPES OF CLAIMS

II. LIABILITY - THE OPTIONS AVAILABLE

PAGE

1

4

8in 12

18

19

21

2124252627

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292929303233

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53

Delay ClaimsExtended Duration CostsImpact CostsAcceleration CostsLost Opportunity

The1.2.3.4.

A.

A. Concurrent Liability in Contract and TortB. Design Professional's Liability to Other Parties

NegligenceC. Conclusions to be Drawn

B. Proof of the Delay Claim

C. Common Claims to be Considered1. By the Owner

(a) In Contract(b) In Tort

2. By the Consultants3. By the Contractor and Subcontractor

A. Steps to Take at .the OutsetB. Production of Documents and DiscoveryC. The Trial

III. WHOM DO YOU SUE?

I. INTRODUCTION

Appendix A - Selected Reading List

Appendix B - The Role of the Consultant as Part of theClaim Team, Stephen V. Revay

Appendix C - Quantifying the Claim - The Accountant's RoleJ.L. Seigel

)

CONSTRUCTION LITIGATION

LEGAL ISSUES AND CASE MANAGEMENT

I. INTRODUCTION

The management of construction litigation is as challenging a task

as the civil litigation lawyer is likely to meet. The underlying

legal principles are uncertain and developing, the parties and

types of claims mUltiple, the factual background and documents

often overwhelming, the sums involved significant and the evidence

often of a very technical or scientific nature. As with any

lawsuit, the key to successful management is proper organization.

Because the demands of construction litigation may be more

intense, deficiencies in planning and systems may become more

obvious and hurt your case more than in other less complex

proceedings.

The theme for my paper is this - The only way to effectively

handle the issues arid evidence in construction litigation or other

complex trials is to have in place systems which permit you to

deal with the legal, factual and evidentiary issues in

identifiable and controlled segments.

Unfortunately, the word "systems" has, in our developing computer

reliant society, the connotation of a rigid, precise, step by step

process that must be followed. The management of lawsuits has

- 2 -

always been and· will remain more suited to individual, flexible

and intuitive systems than such rigid systems and yet some

system or planned approach is essential. In this paper I attempt

to outline my approach and system. There is nothing unique about

it; it largely consists of common sense and the practices of

others that I have borrowed because they suited me or the demands

of cases I was involved in at the time. To speak of it as a

system is somewhat inaccurate since it is more a collection of

suggestions as to possible approaches which I don't necessarily

follow myself in any specific case.

Select what you find appropriate and discard the rest except but

for my overriding theme that some systematic approach and analysis

is essential for proper case management.

The paper barely scratches the surface of the topics which I was

asked to address and I have chosen to eliminate entirely topics

such as quantification of damages because an overview seemed

inappropriate. When I· introduce a topic in this paper the

discussion should not be treated as anything more than an

overview. My purpose is to assist the reader to identify topics

that should be considered further. Because of the paucity of

materials on construction law in Canada I have attached, as

Appendix "A", a selected reading listing which will permit the

)

- 3 -

reader to embark upon a more detailed inquiry into some of the

topics introduced in this paper.

I extend my thanks to stephen Revay and John Seigel for their

permission to use their papers on the roles of the claims

consultant and the accountant in construction litigation. The

concepts discussed in these papers are central to the "claim team"

approach.

- 4 ­

II. LIABILITY - THE OPTIONS AVAILABLE

The complexity of construction litigation is as much a consequence

of the optional approaches to liability as it is of the number of

parties involved. Indeed, the channels of potential liability

form part of the reason why Plaintiffs typically sue a number of

parties who in turn, counter-claim, c'ross-claim and third-party

claim.

As in any litigation, a sound conceptual underpinning is essential

to the proper management of the case. Trite as it may seem, my

message is that case management decisions are really a function of

the quality of your initial conceptual analysis of the case.

Accordingly, I start this paper with a brief overview of

fundamental concepts of liability in construction law.

Unfortunately, there is a distinct shortage of useful texts and

other written material in Canadian legal literature on

construction law. I have attempted to compile a list of reports,

articles and other published materials relevant to the issues I

will address. It is attached as Apendix "A".

Construction litigation is unique in that within one lawsuit you

may address concepts of liability in:

(i) contract,

(ii) quantum meruit, and,

- 5 -

) (iii) tort, in the sUbcategories of negligence, negligent

misrepresentation and economic loss.

The voluminous and detailed contracts that confront counsel in a

construction dispute can overwhelm and distract from consideration

of the quantum meruit and tort avenues of liability.

The first and most essential analysis is, of course, within in the

contractual mode. A detailed review of the contract to identify

all possible breaches or defences to alleged breaches must be

carried out. In this respect construction litigation is no

different than other contractual claims. I do, however, suggest

that in your contractual analysis you also be sure to flag any

waivers directed at relieving parties from liability in either

quantum meruit or tort. It is well established law that parties

may contractually dispense with liability that would otherwise

arise in law.

While perhaps not jurisprudentially correct, my simplistic concept

of quantum meruit is that it was developed with the justification

by the courts that their equitable jurisdiction permitted them to

provide fair compensation for work done where the contract did not

provide for it. This may seem an unjustifiable departure from the

language of the contract in an age when the Courts repeatedly

state that their role is to interpret and apply the contract and

not to rewrite it; but it does continue to exist and is

occasionally invoked. Quantum meruit has been utilized by the)

(iii)

- 6 -

Courts to justify payments to contractors where:

(i) there is no express or implied contract covering the

terms of payment for specific work required to be done,

(ii) where the contractor performed work for a owner in

respect of which there never was an agreement including

cases where the underlining agreement was found to be

void, and,

where the work has been performed even though

circumstances have changed so fundamentally that the

original payment provisions mean nothing or where the

contract has been abandoned.

Generally, a person will be liable to pay on a quantum meruit

basis where there is no contract provision applicable but the work

has been done at the person's request or that person has accepted

the benefit of the work; unless it was clear at the time the work

was done that the parties understood that the person doing the

work did not expect payment for it. As a practical matter,

quantum meruit is not- often resorted to and it will most

frequently arise in circumstances where the need for some

essential, but previously uncontemplated, work arises. Then, if

the contract does not have provisions which accommodate payment or

if the contract has for some reason come to an end the court may

invoke quantum meruit.

Quantum meruit is very narrowly circumscribed and the trend within

)

7 -

construction contracts is to place precise limitations upon

liability. Therefore, the most fertile area for liability

extension lies in tort. Decisions in construction law cases have

been at the forefront of establishing the concept that there can

be concurrent liability in both contract and tort. The craft of

the contractual draftsman will no doubt be brought to bear on the

issue of concurrent liability in contract and tort; but at least

until the forms of contract become explicit on the point, we can

expect to see cases being advanced in both contract and tort.

Concurrent liability opens the option to claim, for example, that

the contractor has a duty of care to the owner and liability in

tort to ensure that the design of the building was appropriate or

to subcontractors to ensure that they are not delayed. It is only

within the tort concepts of duty of care that contractors can

justify claims against design consultants.

- 8 -

A. CONCURRENT LIABILITY IN CONTRACT AND TORT

Initial attempts to found claims in both contract and tort focused

on owner claims against the design professionals. Historically,

actions against professionals were deemed to be actions brought in

contract whether or not a formal agreement existed. For example,

actions against notaries or solicitors are held to be contractual

in nature. See Schwebel v. Telekes (1967) 1 O.R. 541. The

assault on this rule had, as its jurisprudential underpinning, the

argument ,that professional status is a holding out or

representation to the public that the professional in question is

possessed of certain expertise that the pUblic can rely upon. In

the construction industry design professionals hold themselves out

as being solely and uniquely qualified to design structures. The

pUblic and the participants in the industry rely upon the fact

that such design can only be done by the professionals and assume

that the professionals can be relied upon to do a proper job. As

a practical matter,· contractors have no alternative but to rely

upon the design professionals notwithstanding the typical absence

of any contractual relationship.

The concept that where there is a breach of a duty of care which

results in damage to property or person, losses are recoverable

was thought to be limited, in the sphere of commercial activity by

the duty of care issue. In other words, if there was no contract

- 9 -

) to establish a relationship it was concluded no duty was

intended. The famous decision of Hedley Byrne & Co. v. Heller &

Partners Ltd. (1964) A.C. 465, is the origin for the principles

that duties of care can arise in commercial settings absent a

contract by a representation or holding out and that entitlement

to recovery can extend beyond damage to property and person to

recovery for pure economic loss. The Supreme Court of Canada in

The Pas v. Porky Packers Ltd. (1977) 1 S.C.R. 51, reiterated the

principle from Hedley Byrnes as follows:

"The House of Lords has thus expressed the opinion that if in

the ordinary course of business including professional affairs

a person seeks advice or information from another who is not

under any contractual or fiduciary obligation to give it, in

circumstances in which a reasonable man so asked would know

that he was being trusted or that his skill or jUdgement was

being relied upon, and such person then chooses to give the

requested advice or information without clearly disclaiming

any responsibility for it, then he accepts a legal duty to

exercise such care as the circumstances require in making his

reply; for a failure to exercise care that care, an action for

negligence will lie and damage for loss that results."

It is to be noted that The Supreme Court of Canada in The Pas v.

Porky Packers did not limit the duty to the professional

relationship but extended it to relationships arising in the

ordinary course of business. This decision was preceeded by the

Ontario Court of Appeal decisions in Dominion Chain Co. v. Eastern

Construction Co. (1976) 12 O.R.(2d) 201, where Mr. Justice Jessop

stated:

)"I conclude that both Dominion and Dabous the defendant

engineers and architects were tortfeasers· and incurred

- 10 -

liabilities as such to the respective plaintiffs whether or

not they also incurred contractual liabilities for breach of

contractual obligations to take care solely to be implied from

their relation to their clients as members of professions

possessing skills."

Mr. Justice Jessop extended the relationship beyond the

professionals and in respect of the builders stated,

"In any event I think that a contractor or builder who is

negligent in the performance of the contract to build is

liable in tort under the principle of M'Alister v. stevenson

(1932) A.C. 562, to any person SUffering resultant injury to

person or property (without deciding whether he is also liable

for financial loss other than consequential to such injury.)"

The ontario Court of Appeal has reaffirmed its conclusion that

concurrent actions in tort and contract are applicable against

both contractors and design professionals in Consumer Glass Co. v.

Foundation Company of Canada 13 C.L.R. 149. In this case it was

observed that since an action in negligence had not been precluded

by a contract between the parties that the claim could equally be

asserted in both contract and tort. Notwithstanding the principle

that an action may be founded both in contract and tort, the

contract remains of central importance because:

(i) Normally the contract will specifically state the scope

of the duty which has been assumed;

(ii) In the absence of any definition of the scope of the duty

the contract may nonetheless contain provisions which

limit duties of care that might otherwise be implied· by

the law or may restrict the period af time within which

)

- 11 -

the contract may nonetheless contain provisions which

limit duties of care that might otherwise be implied by

the law or may restrict the period of time within which

claims may be brought. Futher, the contract may

specifically address whether the contracting parties can

have resort to negligence principles.

,The fact that the law permits actions in both contract and tort is

of much greater significance to owner actions against the design

professionals than for actions against contractors. The very

essence of being a professional is a holding out of oneself to the

. public that you are possessed of all the requisite skills to

complete the task appropriately. Typically, contracts relating to

the services of professionals do not define standards of

performance because those standards are set by the profession.

Within the construction industry, however, standards of

workmanship and material are not sufficiently defined by custom or

other formula. As a consequence, the contractual terms will play

a greater role and tort analysis will not be as easy to adopt and

apply. Quality is more often than not a function of price, there

are not minimum standards as in design and as a consequence the

contracts frequently specify performance criteria.

While concurrent liability of the design professional to the owner

in tort is helpful; the corallary of the Hedley Byrne's principle

that a design professional owes a duty of care to other

participants in the project - is even more siqnificant.

- 12 -

B. DESIGN PROFESSIONAL'S LIABILITY TO OTHER PARTIES IN NEGLIGENCE

C.E.D. (Western) on Building Contracts, paragraph 131, states with

reference to the design professional that "he is not liable to

third-parties such as contractors or sub-contractors for any

economic loss they suffer as a result of design deficiencies or

inadequate supervision." C. E. D. (Western) does not indicate the

date to which they believe this statement accurately reflects the

law. In my opinion, it does not accurately reflect the present

state of the law.

The most significance aspect of this analysis is economic loss

since typically a third party's claim against a design

professional is not for loss sustained as a result of damage to

property or person but rather is based upon additional costs which

have been incurred in the performance of the work. Such costs may

be the result of:

(i) defects or omissions in the plans and specifications

which a contractor relied upon in making his tender, or

(ii) the design professional having specified particular work

or having permitted work for which he gave no specific

instructions to continue and then sUbsequently rej ecting

it.

(iii) failing to inspect work as it is progressing and later

rejecting.

13 -

As a result of relying upon the design professional's plans,

specifications, instructions or approvals (express or implied) the

contractor may find himself in a situation of having to utilize

different equipment, materials or methods resulting in increased

expenditures of time and money. Occurences of this nature can all

be massaged to fit within the concept of economic loss resulting

from a reliance and thereby fall within the principles set forth

in Hedley Byrne's and The Pas v. Porky Packers.

This concept initially found some resistance in our law. Hudson's

Building and Engineering Contracts, Tenth Edition states the

general principles applicable as between contractor and an owner

in respect of errors in design information as follows:

"An employer (owner) who uses a professional advisor

(designer) does not warrant that completion according to his

advisors plans or design is practicable and even in the

absence of express provisions for the protection of the works,

the risk in regards to the safety of the work remains with the

contractor until they have been reoccupied by the employer and

accordingly a contractor who (as is almost invariably the

case) expressly or impliedly undertakes to complete the work

or project according to the contract drawings and designs

thereby impliedly warrants that he can do so and if he cannot

he will be liable in damages. In consequence, any additional

work necessary to achieve completion must be carried out by

him at his own expense if he is to discharge his liability

under the contract."

- 14 -

An extrapolation of this statement seems to leave little room for

the contractor to make the argument that there was any

representation or holding out to the contractor that the work can

be completed according to the design consultants plans or

specifications. However, in the Supreme Court of Canada's

decision in The Pas v. Porky Packers and in its previous decision

in Rivtow Marine Ltd. v. Washington Iron Works and Walkem

Machinery and Equipment Ltd. (1974) S.C.R. 1189, the door was

opened. The following decisions have confirmed the availability

of a tort claim by the contractor or sub-contractor against design

consultants. They permit recovery for economic loss (e. g. delay

claims or impact costs) which may not be recoverable by the

contractors from the owner:

(i) Trident Construction Ltd. v. W.L. Wardrop and Associates

Ltd. (1979) 6 W.W.R. 481. In this case the information

contained in the design documents was incomplete or in

error as regards soils information and certain

specifications relating to the design of a water stop

were not apt. As a result of this information the

contractor chose a particular method which proved to be

unfeasable. The design consultant raised the usual

defence that there was no warranty that his plans would

be free from defects or that they would be workable. Mr.

Justice Pratt of the Manitoba Court of Appeal concluded

that the contract between the owner and the general

contractor imposed upon the design consultants the

- 15

responsibility to provide the contractor with such advice

as was within the consultants expertise and might be

required to assist the contractor in the proper

performance of the work. Mr. Justice Wilson adopted the

following submission of counsel for Trident namely:

"In the building trade in Manitoba not only does the

owner rely upon a consulting engineer to prepare

competent and reliable structural drawings for the

erection of a building in accordance with those

drawings, but also the contractors who are called

upon to tender for those buildings on the basis of

such drawings and specifications must also rely upon

the accuracy and competency of these drawings. The

normal practice is for the engineers to take months

to research and prepare the plans and specifications

involved in a project for which they are paid

substantial sums and to give the contractors only a

few weeks to prepare and submit competitive bids for

the construction of the building based upon such

plans and specifications. In this time frame, it is

impractical for any building contractor in Winnipeg

to check independently the structural design of the

buildings involved in the plans and specifications

prior to bidding."

He then adopted this statement from Mr. Justice de

Grandpre in Davie Shipbuilding Ltd. v. Cargill Grain Co.

Ltd. :

"It must not be forgotten that the duty of the

engineer and the contractor are different, the

former being a specialist to whom the design and

preparation of plans and specifications are normally

- 16 -

entrusted and the second merely carrying out the

work. If the second is required to do the checking,

which the jUdgment appealed from would imposed upon

him, the precense of the engineer is no longer

useful, for all practical purposes."

(ii) Brown & Huston Ltd. v. The Corporation of the City of

York (1983) 5 C.L.R. 240. This case involved a

(iii)

contractor relying upon soils reports and other tender

documents resulting in an action against the engineers

which alleged that the owner was vicariously responsible

for the faults of its consultant. The Court held, "the

engineers must have known that tenderers would rely upon

the tender package; particularly where the contract

documents did not require the contractor to satisfy

itself about the sub-surface conditions" and later "I

have come to the conclusion that there was a reasonable

reliance on the lack of information concerning a water

condition so as to bring the case within the principles

enunciated in Hedley Byrne & Co. v. Heller & Partners

Ltd."

Cardinal Construction Ltd. v. The City of Brockville

(1984) 4 C.L.R. 149. In this case the contractor relied

upon tender documents prepared by design consultants

which proved not to be correct. Mr. Justice Henry

concluded "in preparing the drawings and specifications

for tender the engineer has a duty to provide information

17 -

that is complete and correct; existing utilities to be

encountered must not be incorrectly described, e.g. a

concrete duct must not be described as cable or conduit"

and later "These findings as to the professional

obligations of the engineer are, in my opinion supported

by, or consistent with, the judicial decisions which I

have referred to above - Hedley Byrne, Haig v. Bamford

and Trident Construction."

In light of the above I believe it can be safely said that there

is a clear avenue for contractors to make claims against design

professionals on the basis of negligent statements contained in

plans and specifications, tender information or background

documents on which the contractors have relied. Whether the

responsibility for this can be passed back to the owner on the

basis of vicariously liability will in large part depend upon the

provisions of the contract with the owner. Presumably, design

consultants are going to react to these decisions by attempting to

insert disclaimers in their documentation; however, this creates

practical problems in the real world. Owners will not feel

comfortable with design consultants insisting upon broad based and

all encompassing disclaimers and it appears probable that there

will be experimentation with various watered down versions.

- 18 -

C. CONCLUSIONS TO BE DRAWN

It is obvious that in every case the potential of framing a claim,

counter-claim or cross-claim in each of contract, quantum meruit

and tort must be analyzed. The potential for actions in either

contract or tort extends right down to the supplier and

sub-contractor levels. All options to avoid the strictures of

privity of contract and the waivers and disclaimers contained in

contracts must be considered. This includes considering product

liability claims against suppliers. No claim or defence can be

properly structured without having analyzed all basis of liability.

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- 19 -

III. WHOM DO YOU SUE?

Obviously, the question of whom you sue must be addressed not only

by the plaintiff but also by all other parties in the context of

counterclaims, cross-claims and third party claims. The simple

answer to the question of "whom you sue" is that you sue anyone

who has an economically significant potential liability under any

of the avenues of contract, quantum meruit or tort.

The initial answer to the question is easy but the rider that

directs you into an inquiry of economically significant potential

liability is not. There is, of course, the additional question of

whether there is any economically significant prospect of recovery

if liability complicates matters. Unfortunately, the nature of

the construction industry is such that the party with clear

liability at the outset of litigation may subsequently become or

prove to be insolvent. This "fact" of life reinforces the need to

determine whether arty of. the actors can be made responsible under

any secondary theory of liability. In all of this you must not

forget to address, at the outset, possible direct claims against

bonding companies and/or insurers.

Typically, a bonding company will not pay on a bond if the party

bonded claims not to be in default or to have no liability. In

such instances you will wish to add the bonding company as a party

20

to the action to ensure that, as the litigation drags along, no

limitation periods are missed.

If a party defendant is insolvent you may find that the insurer

does not defend but will lie low in the hope of avoiding having a

claim made on the policy. In such cases you must consider the

option of an appropriate application under The Saskatchewan

Insurance Act· to ensure that the insurer is forced to pay any

proceeds under its policy into court for the benefit of the

jUdgement obtained.

The professional that is the easiest to overlook in the process is

the lawyer. Since lawyers may well have been involved at any

stage from contracting forward the possibility of a negligence

claim against the lawyer involved always exists. Do not fail to

consider this possibility.

Of greater significance than the question of whom to sue is the

question of the nature of or types of claims that can be

advanced. There are many types of claims that are unique to

construction litigation. Once you have identified all possible

parties, the claim should be cast in the broadest formulation

possible.

- 21 -

IV. TYPES OF CLAIM

In this section I will attempt to do little more than to list some

of the various types of claims that may be advanced. This listing

is intended to be no more than a partial checklist and no

discussion of the various types of claims is attempted. An

analysis of the practical considerations behind some of these

categories of claims (for example the contractors delay claim)

could be the sUbject of an entire seminar in itself. As mentioned

in section III above; a consideration of each of these potential

categories of claims should be made, not only from the perspective

.of the plaintiff, but also from the perspective of other parties

for possible counterclaims, cross-claims or third-party claims.

Before my list of common types of claims, I will provide a brief

overview of the delay claim.

A. THE DELAY CLAIM

A significant portion of construction litigation deals not with

straight forward items such as non-payment, inadequate

construction design or who is responsible for what costs under a

proper interpretation of the contract; but rather relates to

claims of economic loss resulting from delay. An owner may suffer

significant financial loss from the failure of the consultants and

contractors to deliver the project in a timely manner. The

- 22 -

quantification of damages in such cases is basically a matter of

proving the increased financing and administrative costs resulting

from the extended duration of the contract and the economic loss

resulting to the owner from the inability to utilize the asset on

the scheduled delivery date. The consequences of delay to the

contractor and the proof of damages for such delays is a more

complicated matter.

Most construction projects and the contracts relating thereto

contemplate a particular scheduling of construction and a

specified completion date. The scheduling itself is an essential

part of the contract and the particular schedule used is vital to

evaluate any delay claim. The simplest, most basic schedule, is a

bar graph which demonstrates graphically for each element of the

building (eg. concrete work, electrical, plumbing) the duration of

each activity and the activities that can be concurrent. It

schedules the flow or sequence of work; however, it does not and

cannot show the inter-relationship between activities. On a well

administered job the bar graph will be amended from time to time

as the circumstances dictate which may assist in proving a delay

claim.

A more sophisticated form of scheduling is the critical Path

Method (C.P.M.) which incorporates the inter-relationship of

activities and records what critical elements must be completed

before another stage of construction can be commenced. By way of

)

- 23 -

simplistic example electrical wiring must be completed before

drywalling can occur.

Any delay claim will involve a comparison of initial job

scheduling with the actual performance on the job site. Essential

to the prosecution or defence of any delay claim will be an

understanding of the project scheduling and how delays in one area

impact other areas. This understanding can only be obtained from

people with experience in this aspect of the industry. This is an

area where you would typically utilize a claims consultant. In

this portion of the paper I will simply outline some basic

concepts that should be considered.

Some delays are of a nature which do not materially disrupt the

sequencing of other work or a particular contractors utilization

of his work forces. Such delays will usually give the contractor

a right to claim extensions of time for completion but not

necessarily a claim for compensation. If the delays are justified

(in the sense of being caused by others or by forces not within

his control), the contractor will be entitled to an extension of

his contract completion period and will be relieved for that

period of time from any damages the owner suffered as a result.

On the other hand, the delay may permit the contractor to claim

both a time extension and compensation. The courts will have to

look to the cause of the delay and the express and implied

provisions of the contract to determine the consequences of any

particular delay.

- 24 -

A delay can have the following costs consequences for a contractor

namely:

(i)

(ii)

( iii)

(iv)

delay or extended duration costs,

impact or efficiency costs,

acceleration costs, and.

lost opportunity to earn profit.

1. Extended Duration Costs

Extended duration costs are those costs which flow from having to

maintain an organization and employees in place for an extended

period of time. In the first instance, these are cost orientated

items and do not include production orientated costs. Examples of

such costs are:

(i)

(ii)

(iii)

(iv)

(v)

administration and supervision costs,

equipment, rental and maintenance costs,

temporary office and facilities costs,

service and utility costs such as light, power, heat,

water, and

insurance bonds and permits

In addition to these overhead costs there are projects specific

costs which arise from the delay including:

( i) increased labour costs - the contract may extend into a

subsequent collective bargaining periods where the labour

rates are higher,

- 25 -

(ii) increased material cost - material costs have a tendancy

of increasing,

(iii) increased cost of winter work including hoarding, heat

and the like, and

(iv) the cost of deterioration to completed work left exposed.

The contractor will of course want to recover all extended

.duration costs from the owner where the option is open to him

under his contract. Where it is not, consider whether such delay

costs can be sought from design consultants or other contractors

on the basis of their fault.

2. Impact Costs

These are costs incurred by a contractor due to loss of efficiency

arising from delay whether it flow from performing a work out of

sequence, at an accelerated pace or for other reasons. Such costs

are the difference between the actual cost of performing the

portion of the project in question and the cost that would have

been incurred for the same portion of the work if it had not been

impacted by the cause alleged. To calculate impact cost you are

essentially trying to figure out the differential between what was

actually spent as opposed to what this contractor, on this

project, doing this work, without interruption would have spent.

For example, what was the loss of productivity of the working

force caused by having to do the work under winter

- 26 -

conditions as opposed to summer construction as initially

scheduled? For an example a case considering impact costs, see

Electric Power Equipment Ltd. v. RCA victor Co. Ltd. (1964) 41

D.L.R. 727.

3. Acceleration Costs

Acceleration costs are increased costs incurred by a contractor in

his effort to compress the work and complete it on time despite

the delays caused by other persons. Especially when a date for

completion is specified it is assumed that a contractor is

entitled to a period of uninterrupted and exclusive possession to

permit him to carry out his work unimpeded.

See Marentette Brothers Ltd. v. Sudbury (1973) 1 O.R. 450 @

462, varied by 45 D.L.R. (3d) 321.

Morrison - Knudsen Co. v. British Columbia Hydro (1978) 85

D.L.R. (3d) 186.

In the Morrison-Knudsen case the British Columbia Court of Appeal

stated at p. 248:

"If Hydro caused the contractor to speed up its work to

overcome owner caused delays, and we think the Trial Judge

properly found that to be the case, then the additional cost

attributable to acceleration can be assessed "

Examples of acceleration costs would be:

(i) increased costs of supervision,

(ii) additional materials,

(iii)

(iv)

(v)

(vi)

(vii)

- 27 -

additional equipment costs,

costs of extra movement of men, equipment and materials,

overtime costs,

costs of overmanning the project, and,

loss of efficiency resulting from overtime work.

4. Lost opportunity

In addition to the actual costs that may be consequent upon a

delay the contractor also suffers the loss of revenue and profit

that he would have earned had he been occupying his time on

another project. The Supreme Court of Canada in Shore & Horwitz

Construction Co. Ltd. v. Franki of Canada Ltd. (1964) S.C.R. 58

utilized the following formula to determine lost revenue, namely:

Total Markup IncludedIn Tender PriceScheduled Length ofJob (in time units)

xLength of Delay AmountIn Time units = Chargeable Due

to Delay

other formulas may b~ more suitable in specific cases.

B. PROOF OF THE DELAY CLAIM

Proof of the delay claim will require adequate contractor

documentation of the actual progress on the job together with the

timekeeping and cost control records appropriate to the claim.

- 28

The delay can only be proven through a comparison of the

contractor's daily records with the initial schedule and some

proof that tne initial scheduling was feaseable. The contractor's

project records will outline particulars such as:

(i) the work being done,

(ii) delays encountered upon specific work and the reasons for,

(lii) records of men and equipment on site and their down time,

(iv) estimates of loss productivity and the reasons for, and,

(v) other pertinent information.

In developing any such claim, the contractor will be the best

initial source to outline the consequences of the delays but the

development of the claim and proof thereof should be supplemented

through the resources of a claims consultant and an accountant

familiar with construction matters. In particular, a qualified

claims consultant will have available to him a broad range of

accumulated industry datas specific to the work in question which

will show average labour and equipment rates and productivity

information for various· types of work which will permit him to

calculate inefficiency and other impact costs.

- 29 ­

C. COMMON CLAIMS TO BE CONSIDERED

1. By The Owner

(a) In Contract

Analyse each contract to which the Owner is a party to identify

all breaches of contract. When doing so'ensure that consideration

is given to all notices that must be given as a prerequisite to a

claim. Such notices are particularily relevant with respect to:

(i) delay claims, and

(ii) bonding claims.

Consider whether the breaches identified are fundamental so as to

give rise to the option to elect to terminate the contract or

whether they sound only in damages. Before making any decisions

to terminate consider all alternatives given the increase cost of

having another contractor complete. Contractors will rarely

takeover another's project except on a cost plus basis or a well

padded fixed price contract - since experience suggests it costs

significantly to complete anothers contract. The mitigation

responsibility must always be borne in mind.

Consider whether there are contractual claims against other

parties such as equipment or material supplier who have been

obligated to provide a warranty for the benefit of the owner.

- 30 -

(i) Against the Design Consultants

- For failure to provide the design on time.

- For failure to design properly.

- For failure to carry out inspections and otherwise supervise

the work.

- For failure to approve shop drawings or deal with other

matters arising ina timely manner resulting in delay

claims from contractors or giving rise to the owners own

delay claims.

(ii) Against the Contractor

Failure to build in accordance with plans and

specifications.

- Failure to meet acceptable standards of workmanship or

materials.

- Failure to comply with National Building Code or other

applicable standards.

- Breach of specific warranty, re: materials, product

performance or. suitability for a particular purpose.

- Failure to complete on time giving rise to an owners delay

claim.

(b) In Tort

Consider whether a tort based claimed will broaden, in any

respect, the claims that can be made against the design

- 31

consultants or contractors. As a matter of precaution it is

probably best to formulate breach of contract claims in negligence

as well.

Claim directly against responsible sub-consultants and

sub-contractors. Do not leave it to the prime consultant or

contractor to third-party them in. They may not for various

reasons and you wish to ensure that all possible resources are

available to cover the Judgement.

Consider whether the consultant failed to perform any function

·that you would normally expect a consultant to do but which is not

particularized in the contract.

Consider whether the contractor failed to do anything which you

would reasonably expect of a competent contractor even if not

particularized in the plans, specifications or contract.

Is there any basis to say that the contractor blindly followed

plans and specifications in ~n area where a reasonably competent

contractor would have picked up an inconsistency or design error.

Claim directly against suppliers where applicable on a product

liability basis.

- 32 -

(c) Quantum Meruit

Owners woulq not have a quantum meruit claim to advance against

anyone. Rather they would be seeking to resist any suggestion of

such a claim.

2. By the Consultants

Typically the design consultants actions are limited to aqtions to

recover fees or resisting allegations of liability for loss. When

sued the consultant must consider all possible cross-claims and

third-party claims available to seek contribution.

Consider whether it is possible to take the position that the

owner so interferred in the consultants role that it can be said

the owner fundamentally breached the contract. This may be

considered if it is considered adviseable to end the consultants

obligation to provide" further contract administration or

supervision.

Cross-claim or third-party other consultants

contribution or indemnity may be sought.

from whom

Consider quantum meruit claims for additional design services,

contract administration or inspections especially for deficiency

- 33 -

investigations. I have never seen such a claim pursued but there

is no reason in logic why its not available.

Do not concede a duty of care is owed to contractors

notwithstanding Trident Construction etc. The position in law is

not rigid. Rely upon all waivers and disclaimers that can be

found in tender documents or contracts.

Plead improper contractor performance whenever possible to counter

allegations of defective design. Cross-claim and third-party

claim other responsible consultants.

Consider third-partying suppliers of proprietory systems whose

systems were incorporated in the design as a result of promotional

representations made regarding its quality or suitability.

3. By the Contractor and Sub-Contractor

Don't forget the option of a debt action where you have a solvent

owner and/or general contractor. Disputes as to who is

responsible may result in a stay of mechanic lien proceedings

pending the conclusion of litigation which settles

responsibility. Sub-contractors and suppliers who are not

involved in this litigation may be well advised to proceed in debt.

~ 34 -

Consider claims in each of contract, tort or quantum meruit to

cover off costs and/or costs and profit for:

(a) Extras,

(b) Increased costs occasioned by changes in site conditions,

design or scope of work,

(c) Extended duration costs caused by:

(i) failure of others to deliver plans, materials or

perform work in accordance with scheduled times,

(ii) change in site conditions, and,

(iii) change in design or scope of work.

(d) Inefficiency or impact costs caused by things such as:

(i) having to wait on others to complete prerequisites,

(ii) having to perform work out of normal sequence,

(iii) having to work around others on site,

(iv) inefficiencies caused by seasonal considerations,

(example, winter construction) or changes in design

or scope of work, and,

(v) any other inefficiencies caused by changes from what

was anticipated at the signing of the contract.

(e) Acceleration Costs - the costs inherent in accelerating

normal work scheduling in an effort to regain lost time

or accommodate changes in the work.

consider claims against the consultants for:

- failure to provide complete or providing inaccurate

information on site conditions in tender information and

reports

- 35 -

- for delays in providing working plans and specifications or

directions

failure to provide or to provide in a timely fashion shop

drawing approvals, supplementary designs or working

instructions

- failure to adequately inspect contractors over as other

contractors work

Consider claims against other contractors for failing to complete

their work in accordance with the contract schedules resulting in

the delay costs consequent upon extended duration, impact or

inefficiency and acceleration.

v. PRACTICAL MANAGEMENT OF ISSUES

Construction litigation is unique in that it combines elements of

actions in both contract and tort with quantum meruit and mechanic

issues thrown in to· boot·. Quite apart from the complexity of the

law, the evidentiary problems are intriguing because much of the

evidence will be the evidence of experts but not in the

traditional sense of an expert who comes in and gives evidence on

the basis of a hypothetical. Rather, you will have experts who

have become inextricably interwoven in the narrative of the case.

Typically, they have either designed the building, built it or

- 36 -

become involved in investigating its failure. The expert becomes

a witness as to both fact and opinion. The money involved is

usually significant, so even minor issues are hotly debated and

the volume of documents is nearly overwhelming.

Because of the complexity of construction litigation it is

essential that counsel adopt a system for managing the

documentation and the investigation of the relevant issues both

legal and factual. Each of us must develop a system that we are

comfortable with and which is sUfficiently flexible to bend to the

damands of the particular case.

There is nothing unique or new in the suggestions I am going to

make - they are simply techniques which others made and I adopted

or wished I had adopted. Utilize them as you see fit.

If I were restricted to a single suggestion as to how to approach

the management of a construction litigation case it would this ­

it is a false economy not to invest ample time, effort and money

at the front end of the action to organize. As I have fumbled

through major construction actions I found that every time I

decided not to hire an expert or not to research a point because

it might not be needed I was wrong and I wasted a lot of time and

effort on the way to that conclusion.

- 37 -

assembly background information

identify and formulate the factual basis of the claim or

defence

(iii) identify and assemble relevant documents

(iv) undertake and produce the necessary studies and reports

(v) prepare the evidence for trial.

The responsible lawyer orchestrates the group but each member of

the group is expected to assume primary responsibility for his or

her area of responsibility. The team may be as small as the

contractor, an engineer, accountant and the lawyer or may involve

such additional specialists or generalists as the circumstances

may require. In a complex construction case some variation on

this approach becomes virtually essential to ensure that

everything which needs to be absorbed and accomplished is

completed. The role of the scientific or engineering specialists

in such a group is readily apparent. The role that can be played

by a claims consultant and accountant is perhaps not so clear.

Accordingly, I have in Appendix "A" attached stephen G. Revags

excellent paper on "The Role of The Claims Consultant" and in

Appendix "B" John Seigel's paper on "Quantifying the Claim - The

Accountant's Role". The case management team should meet at least

The concept of a case management team should be seriously

cons idered. The concept is to assemble from the outset a team

whose members have specific areas of responsibilities within which

they:

(i)

(ii)

- 38 -

once as a group to be briefed on what the other members have done

or are responsible for, to critique the approaches of one another

and generally to ensure that everyone is on the same wavelength

and that there are no holes in the preparation.

(A) STEPS TO TAKE AT THE OUTSET

Spend time in an analysis of the true nature of your claims and

express them clearly in your pleadings since this sets the course

of only your subsequent decision making, but also for the ultimate

trial. If you're analysis and course is not clear at the

beginning, as you delve into the morass of detail during the

action; your strategy and objectives will become even less clear.

Proof of liability and damages differ depending upon the nature of

the claim advance. Proof of damages in tort and quantum meriut

claims are always more difficult and must be approached

differently than contractual claims. Elements of remoteness are

imposed in addition to the consideration of mitigation.

study the contract(s) and know it (them) inside out. Assemble in

one-three ring binder all contractual materials including:

(i) The invitation to tender and all tender information

including consultants reports available at the time of

tendering

(ii)

(iii)

- 39 -

Correspondence and negotiations between the parties

post-tender, leading to the contract, and

The final form of contract including general and

supplementary conditions, the specifications and all

addendums and change orders.

(ii)

(iv)

(iii)

)

You will have constant reference to this volume(s) throughout the

action. Index and label it appropriately.

If specific issues of design or workmanship are involved engage at

the outsite qualified, capable and local expert (s) and have them

prepare for you written reports in which they:

(i) Identify and describe the deficiencies or alleged

deficiencies,

Relate these deficiencies or alleged deficiencies to

specific requirements of:

(a) the contract,

(b) the plans or specifications,

(c) National BUilding Code or other standards such as

the Canadian standards Association,

(d) engineering standards, and,

(e) workmanship standards

Analyze what was done or what was not done in light of

the above.

Outline what the consequences are.

- 40 -

(V) Outline what can or should have been done and by whom to

remedy the "deficiencies" and if necessary provide a

. remedial design or working instructions.

(vi) Provide a preliminary cost estimate.

Require the experts to quote in their entirety the precise

provisions of the contract, plans, specifications, codes or other

standards they rely upon and attach as an appendix to their report

any relevant extracts from National Building Codes or other

standards and texts not quoted in their entirety within the body

of the report. These are often difficult to obtain otherwise.

The discipline of preparing a report is essential. When you have

meetings to discuss issues people attend with the view that the

objective is to meet and discuss the problems. As a consequence,

no one provides anything concrete and preliminary views only are

obtained.

Most experts are comfortable with preparing written reports. They

do it all the time and they have a standard format for identifying

the terms of their engagement, outlining what they have

investigated, what they found in their investigations, what

conclusions they have reached and outlining the solutions they

see. The experts should be asked to do the reports as if they

were doing it for an owner. If they perceive they are doing it

from the outset as a court document they may be spooked and back

- 41 -

) off from their normal confident approach. They will qualify their

conclusions to death. By asking the expert to deliver a report in

their customary written form for the use of the owner they will

relax and do a professional job.

The report must be commissioned by you as counsel to ensure it is

privileged. The expert must be instructed to provide you in the

intial instance with a draft report only. This will give you the

opportunity to review it in detail and where necessary criticize

style, the adequacy of research or explanations and the use or

lack of back up. If you, as a laymen, cannot understand the

.report the Court won't either. Insist that it be drafted, in its

final form, in such a manner that it is understandable.

As for the choice of your expert, the type of expert you require

should be clear. If there is doubt start with the most general

category of expert you can reasonably identify and have him or her

direct to you into the SUb-specialties. It is necessary to engage

your expert early or th~ best available person may be gone. In

terms of choosing your expert all of the usual criteria and

sources of reference (especially others lawyers) apply. I have

one overriding rule: the homegrown expert will usually do a

better job for you and get a better reception than the import.

I suggest that you have your client review the contract and their

- 42 -

files and provide you with a written report outlining, in detail,

where they see that they or others have breached or met relevant

contractual requirements and have them assemble the documents

which they rely upon in support of their position. They should

also set out their calculations as to the damages they claim if

required. Ask them to identify for you where they feel they could

be criticized and why, together with what, their response to such

criticism would be.

Do not under any circumstances extract documents from your clients

filing system or tear it apart and reorganize it. Leave it as it

is. Get all files both from the project site and head office into

your offices intact and leave them that way. Most design

consultants and construction firms have sophisticated and

well-developed filing systems which are specifically tailored for

the construction industry. Indeed, many construction contracts

are administered under a filing system which everyone from the

architect on down adopts. This form of filing system is keyed to

a numbering system originating in the specifications and the

architect, engineers, contractors and sub-contractors will all

adopt this filing system as it relates to their particular

involvement in the contract. Whether the filing system used is

such a comprehensive system or some other system it is best that

you maintain the integrity of the system. This is of even greater

importance when you realize that others on the case management

- 43 -

team will be requiring frequent access. Learn what the clients

filing system is and use it. When you produce documents produce

the entire block out of the filing system.

If the case justifies it engage a claims consultant. This is

absolutely essential where the claim is for extras, delay costs,

impact costs, acceleration costs or other economic issues. For

the way in which a claims consultant can help you see the paper by

Stephen G. Revay. "The Role of The Consultant as Part of The

Claim Team" which is Appendix "B" to this paper.

(B) PRODUCTION OF DOCUMENTS AND DISCOVERY

Maintaining the integrity of the client's filing system utilize a

numbering machine and within every file number every document or

page, preferrably in the upper left corner, with a sequential

number. This is a pure clerical task which can be accomplished by

office staff since no determination of privilege is needed at this

stage. Presumably the file has already been determined to be

relevant and so that is not a consideration. In the unlikely

event that a claim of privilege exists with respect to a document

in your clients project files then it will be listed as privileged

within the Statement of Documents and extracted from the files and

maintained within a privileged file. The nUmbering system will

- 44 -

clearly record its original location. Personally, it is my

experience, that it is not worth the time and effort to extract

irrelevant documents that may be within an otherwise relevant file.

While the Rules of Court require on a strict interpretation, a

description of each and every document; that is not my practice

unless the other side insists. It is my experience that when you

produce the entire files opposing counsel does not insist. Rather

than wasting secretarial staff time preparing statement as to

Documents detailing thousands of documents simply do a descriptive

disclose such as the following:

Client's file, No. 18-031, entitled "Air Conditioning and

ventilation" containing documents number 18-001 to 18-099.

Do not eliminate multiple copies. At this stage it is to early to

start indexing documents. In fact, your client's filing system is

your rough index.

It is my practice to copy the opponents entire set of disclosed

documents except for obvious major duplications (for example, the

plans and specifications for the building). Again, I maintain

their documents intact. Insist upon the production of the entire

files. Assuming that the opposition has numbered their documents

with a different machine or nUmbering system there should be no

difficulty in identifying the origins. If they have not numbered

- 45

their documents sequentially have this done in another corner of

the document.

Once production of documents has been completed and prior to

discoveries I recommend preparing working volumes. utilize three

ring binders. Take photocopies from the client's files and

opponents documents. A few hundred dollars spent on photocopying

can save a thousands of dollars for the client later on in your

time. Typically, I would extract the pertinent documents from

both sides and arrange them in working document binders as follows

(recall that you already have a separate volume for contract

documents) :

(i) The Chronological File - includes in strict chronological

order all correspondence, memorandum and notes that

beyond being simply relevant appear to be significant.

(ii) Specific topic files such as, for example, "Concrete

Deficiencies" or "Disputed Change Orders" or "Delay

Claims".

(iii)

(iv)

Inspection Reports (broken down by sUb-topic if

appropriate)(i.e~ consultants regular inspection report).

Consultants reports from during the course of the project.

Given that the documents contain a unique numbering you will

always know where to find the documents within the original files

during the course of discovery or Trial. On the working copy, you

(iii)

(iv)

(v)

- 46 -

can highlight points of particular interest and make notes if

appropriate. By utilizing a three ring binder you can add

documents as necessary. You will at this stage begin to develop

some sort of index. Every case will be different and it depends

upon the issues. You may want to consider a computer litigation

support package. At this stage I suggest you begin creating a

Trial Book if you have not already done so. Typically, a Trial

Book would be a three ring binder and have the following tabs:

(i) Pleadings,

(ii) Things To Do - every time an area to be pursued comes to

mind a note is made and remains there until crossed off,

Factual Briefs,

Witness Briefs,

Legal Research - legal issues to be pursued are noted and

when completed a memorandum is inserted,

(vi) Topics to Pursue on Discovery,

(vii) Trial Plan,

(viii) Document Index.

This book becomes the central repository for all ideas, enquiries,

research, briefs and related matters. witness briefs, factual

briefs, legal research, the trial plan and other items are

modified or replaced as circumstances dictate.

The basic rule is that you build up your trial book as you go

along. Ultimately, out of the bits and pieces you develop a

- 47 -

master brief. with respect to witness briefs, be sure that a full

but narrative style of briefing is obtained. There is usually too

much volume to prepare materials in a question and answer format.

If you can coerce them to do it get the principal actors to

prepare their own comprehensive written brief in narrative form.

Organize the trial brief as much as you can; but don't depair

because it is intended as a a repository for random bits of

information which will be sUbsequently organized. If in your

review of the law reports if you see interesting case photocopy it

and insert it in the book.

On Examinations for Discovery it is my practice to leave exhibits

in the client's filing rather than creating a separate volume

containing the exhibits. Since the transcript will refer to the

document number they will be easy to locate. By and large, the

documents exhibited are already in your working documents books.

If not, consider again whether they are significant.

Because of the complexity of the matters you will want to have

accompanying you on examination a knowledgeable person from your

clients to assist you through unexpected developments arising in

the course of the discovery process.

- 48 -

(C) THE TRIAL

For any complex trial I suggest actually putting pen to paper and

preparing a trial plan and strategies. The discipline of

preparing a document will clarify your own thinking and will

assist you in keeping things in perspective and in simplifying the

complex (which is a basis goal for the trial) stated at its

simplest the trial plan is a summary of:

(i) what you need to prove,

(ii) how you will do that,

(iii) what you anticipate your opponent will try to do,

(iv) how you will counter that.

If you have been recording thoughts about trial strategies in the

Trial Plan section of the Trial Book you will have already

recorded a lot of ideas. Now is the time to eliminate and

organize. To my mind the plan is not a detailed listing of items

with which you must deal in the evidence. If you have properly

prepared for trial this is already well in hand. Rather it is a

more general outline of where you are going and specifically it

selects a very limited number of themes for your case. Those

simple propositions or arguments which you have concluded deal

best with the central issues of the case and the evidence of

specific witnesses - your own or anticipated from the opposition.

Choose your theme's carefully but when you have settled upon them

- 49 -

keep coming back to them time and again. These are your best

points and on these the action will probably be won or lost.

During the cpurse of the trial you will become distracted by a lot

of trivia and collateral issues.

themes firmly in mind.

Keep you trial plan and your

The j oint trial exhibits should contain the

The Court, will no doubt, want the parties to agree upon

an exhibit book to be filed. This is not only beneficial to the

Court but counsel.

following parts:

(i) The Contract Book - containing all contract documents,

including invitations to tender invitation, the tender,

the actual contract, general and supplementary conditions

and addendums or change orders as appropriate,

(ii) The plans and specifications for the project,

(iii) TQe Chronology this will contain all relevant

correspondence, minutes, memorandum and other records of

a similiar nature wanted in by any party in absolute

chronological order. The Chronology will be numbered

sequentially in the upper right hand corner (to

distinguish from the production document nUmbering in the

upper left hand corner) • At trial all references to The

Chronology Book can simply be Exhibit 1, Page _.

(iv) Inspection reports and other reports prepared by the

consultants and inspectors during the course of the

project,

- 50 -

(v) The relevant accounting records for the project,

(vi) Such other categories of specific documents as are

relevant.

Again, with each of these categories and documents a sequential

numbering in the upper right hand corner will save time at the

trial.

It will be expected that counsel for all parties agree that the

documents in the joint trial exhibits are:

(i) Authored by whomever purports to be the author,

(ii) Were sent as indicated,

(iii) Were received unless the evidence indicates otherwise,

(iv) Statements contained in such documents which are central

to the issues to be determined are not admitted as

correct but generally speaking collateral records of fact

are to be taken as accurate unless specifically

challenged,

(v) The weight to be given to any document is to be

determined by the Court after having the evidence as a

whole.

There is no point in trying to keep out of these volume documents

which you view as damaging to your case unless you have a winnable

argument at law that the document is not admissible into evidence

in any event. If it is damaging to you the other side will get it

in the Rules of Evidence permitting.

- 51 -

The manner of presentation of expert evidence at trial can be a

difficult matter and where difficulty is anticipated appropriate

briefs of law should be prepared. It is my practice to enter as

an exhibit a written report of my experts which contains his or

her evidence. Often you will be met with a good deal of

opposition to this and various arguments (some with merit) that

this is not a proper way for an experts evidence to be presented.

However, persist in your efforts to have the report filed as an

exhibit. The Court appreciates having the written report since it

greatly assists its ability to follow the evidence and removes the

necessity of taking notes on a very complex area. But, when the

experts final form of report is being prepared for trial

anticipate the possible challenges and have the report prepared in

such a way as to minimize the strength of such challenges. It is

essential that the consultant understand the need to actually do

the work himself or to check others work so that the report and

the evidence contained therein is the experts evidence and not

that of some other person. To the extent to which the expert may

rely upon technicians....to...-do-v.arious tests, (e.g. concrete cylinder

tests) you must ensure that the technician's or actual business

records of the technician performing the tests are available and

entered into the evidence. The consultant must ensure that every

back up piece of information referred to in his report is

available.

- 52 -

When a case involves opposition experts, it is absolutely

essential that your experts be present during the evidence in

chief and your cross-examination of opposing experts. As well

briefed as you may have been by your expert; inevitably in the

course of the evidence in chief or your cross-examination you will

run into matters which have not been previously considered. If

something unexpected develops you can always take the opportunity

to consult with your expert and your expert can feed you questions.

If the case is one which justifies second counsel utilize second

counsel. Responsibility for various aspects of the case should be

divided among counsel. Don't try to do it all yourself. Unless

there are other compelling reasons the lawyer who has done the

background investigation should lead the evidence or conduct the

cross-examination in his or her area of responsibility.

Make use of such demonstrative aids to the evidence as seem apt.

In particular, consider use of the view. The accepted purpose of

a view in Saskatchewan -i,s that it is not evidence but rather an

aid to the trial jUdge to understand the evidence.

Any construction action will benefit from a concerned effort to

make the complex simple. Since construction disputes may involve

opinions and facts about events that occurred over months and

years of construction, planning and activity, you must focus on

reconstructing as simply as possible the relevant sequence of

53 -

events upon which your clients defence or recovery will be based.

It will probably be helpful to the Trial Judge if you prepare a

cast summary which identifies the various parties and the

principal actors for each of these parties including their areas

of responsibility. In addition, some form of chronological

outline would be helpful.

VI. CONCLUSION

In this paper I have attempted to outline an approach to managing,

legal, factual and evidentary issues in construction litigation.

My theme has been organization and the adoption of some system to

manage documents and information at trial. In this I have

probably overlooked the essential prerequisite that counsel

acquire some basic knowledge of the industry itself before getting

very far into a case.

The role of the advocate' is to practise the art of persuasion. It

is not possible to persuade others about matters which we

ourselves do not understand. We as lawyers must first understand

before we can interpret. While certain issues of law are complex

and evolving; do not because preoccupied with the law. The focus

at a trial must be on the facts. In the course of a construction

file some of the most significant facts to be proven may be the

- 54 -

manner in which the industry operates and what the participants in

the industry expect from one another. (Note Mr. Justice Wilson in

Trident Construction). Start your own inquiry at that level and

. understand the various perspectives of the design consultants, the

contractors and the owners. These perspectives may well become

part of your theme for the trial.

DISCLAIMER

In the near future, you can expect to see well advised design

consultants placing a disclaimer of responsibility on all of their

work. With this in mind I put my widest possible disclaimer

forward.

APPENDIX "A"

SELECTED LIST OF CONSTRUCTION LAW MATERIALS

Beyond Hudson's (British) and Goldsmith's (Canadian) texts inconstruction law the following materials are available:

- Reports: the "Construction Law Reports" - cited C.L.R.

the "Professional Negligence" reports - cited P.N.

- Seminar Materials:"Construction Litigation" Continuing LegalEducation Society of British Columbia, October, 1983

"The Prosecution and Defence of ConstructionClaims" -National C.B.A.jC.L.E. Committee Program,April, 1988

Articles and Case Comments:Abraham, J. D., "Concurrent Liability in Contract and Tort ­Apportionment of Damages: An Update" (1981-82) 3 Adv. Q. 430

Bates, Paul, "ConstructionDisruption and Delay. CaseConstruction (Western) Ltd. v.CLR 48

Litigation: Damages forcomment: ,W.A. Stephenson

Metro Canada Ltd." (1989) 32

Bates, Paul, "Construction Litigation:Disruption and Delay" (1989) 32 CLR 48-55

Damages for

Bristow, David I., "Claims by Owners Against Contractors"(1988), 1 Nat. Property Rev. 89-94

Charles, W.H., "Torts and Contract - Merging Areas?" (1988) 8Advocates Quarterly 222

Doyle, Michael, "Issues in Construction Industry Litigation"(1988) 29 CR 973 .

Elder, P.S., "Kamloops v. Nielsen - Good Result, Unclear Law"(1986), 24 Alta LR 540

Irvine, John, "Case Comment: John Maryon International Ltd.v New Brunswick Telephone Co and Ward v. Dobson ConstructionLtd." (1983), 24 CCLT 213

Irvine, John, "Case Comment:Associates and Toronto-DominionCCLT 266

Surrey v. Carroll-HatchBank v. Guest" (1979),

&10

- 2 -

Irvine, John, "Contract and Tort: Troubles Along the Border"(1979), 10 CCLT 281

Kirsch, Harvey J., Selected Bibliography of Construction LawWritings in Canada (1988) (Carswell, Toronto)

Law Reform Commission of British Columbia, "Report on SharedLiability"· (1986)

MacPherson, Robert W., "A· Lurch Forward in the Law - Doironv. La caisse Populaire d'Inkerman Ltee and Coopers & Lybrandv. H.E. Kane Agencies Ltd." (1986), 35 University of NewBrunswick LJ 197

Plottel, Gordon, "Building Resolutions:Construction Industry" (1988) 26 CLR 48.

Arbitration in the

Rafferty, Nicholas, "Concurrent Liabil i ty and the Running ofLimitation Periods: Central Trust v. Rafuse" (1987) 3 PN 53

Rafferty, Nicholas, "Tai Hing Revisited: Canadian PacificHotels Ltd. v. Bank of Montreal" (1987) 3 PN 193

Rafferty, Nicholas, "Tort Liability of Public Authorities:Anns, Economic Loss and Limitation Periods" (1985) 1 PN 121

Revay, Stephen V., "The Role of the Consultant as Part of theClaim Team" (1989) 31 CLR 18

Rosenburg, Honorable Mr. Justice A.B., "Limitation Periods asthey Apply to Construction Litigation, The Law and SuggestedReform" (1988) 27 CLR 84

Rubin, Robert A. and Barrick, Lisa A., "Contractor Defaultand Practical Advice to Owners" (1988) 28 cLR 61-68

Singleton, John R., "Reversing the Trend Toward ExpandedLiability" (1988) 27 CLR 213

smith, J .C. and Burns, Peter, "The Good Neighbour on Trial:Good . Neighbours Make Bad Law" 17 University 6f BritishColumbia LR 93

Wallace, LN. Duncan, "Excerpts from Correspondence from IanDuncan Wallace, Q.C., to the Mr. Justice A.B. Rosenburg,Supreme Court of ontario" (1988) 29 CLR 239

Wallace, LN. Duncan, "Joint and Several(Construction projects)" (1988) 25 CLR 169-198

Liability

Westeinde, John, "Construction is 'Risky Business' (RiskSharing between Generals and Subcontractors)" (1988) 29 eLR119-123

The Kirsch bibliography noted above while entitled "SelectedBibliography" is for practical purposes comprehensive. The othermaterials noted above are an attempt to update Kirsch with anemphasis upon concurrent liability, delay claims and constructionlitigation.