Madorin, Snyder LLP has rebranded and is now Bennett Grant LLP. We are a full service law firm based in Kitchener and Listowel serving clients throughout Ontario.
The only thing most contractors know about their liability insurance is the amount of their annual premium. Few of them have good understanding of value they get in return for that premium.
Generally, a commercial general liability insurance (“CGL”) policy covers a contractor for the financial consequences of an accident that results in bodily injury or property damage to a third party. For example, if one of your employees accidentally dropped a tool off of the fourth storey that hit a pedestrian, then your CGL insurer would indemnify you for any damages payable to the pedestrian. If instead the tool damaged a building adjacent to the worksite, then your CGL insurer would indemnify you for the cost incurred by the owner of the building to perform repairs. While these simple examples are useful to illustrate the general scope of coverage, they are, thankfully, rare events. The accidents that tend to trigger coverage under a CGL policy are accidents that result in damage to the project itself.
There are number of policy exclusions that may come into play where an accident results in damage to the project, but the most important is the ‘Own Work Exclusion’. Policy language varies, but here is one example of the Own Work Exclusion:
This insurance does not apply to:
j. "Property Damage" to "your work" arising out of it or any part of it and included in the "products completed operations hazard".
This exclusion does not apply if the damaged work or the work out of which the damage arises was performed on your behalf by a subcontractor.
The general purpose of the Own Work Exclusion is to protect insurers from having to indemnify a contractor for the cost of repairing the contractor’s own shoddy work. If an insurer had to indemnify a contractor for the consequences of shoddy work, then it would create a moral hazard: Contractors would have little incentive to do the work correctly in the first place if they knew their insurer would have to pick up the cost of repair.
However, there are lots of accidents that occur on site to which the Own Work Exclusion does not apply. For example, if a window leaks because it was improperly installed, the installer would still be covered for the cost of repairing damaged drywall and flooring because that is not its ‘own work’. The flooring, drywall, and the window are the ‘own work’ of the general contractor, but the Own Work Exclusion would still not bar a claim for indemnity by the GC because the work out of which the damage arose was performed by a subcontractor, the window installer.
I suspect that subcontractors in particular are leaving money on the table when they fail to recognize that backcharges made against them for damage may fall within coverage. If the amount of the backcharge is minimal, then it may be wise for the subcontractor to absorb the loss without referring the matter to their insurer. Different considerations apply where the cost of repair is substantial.
My final point is that the most valuable part of your liability policy is not the damages your insurer will pay on your behalf if you are found liable for an accident but the lawyers’ fees that it will pay on your behalf to defend you. If a claim is made against you that may fall within coverage, then your insurer has an obligation to appoint and pay for a lawyer to defend you against that claim. If a claim is made against you that may fall within coverage, then notify your insurer so it can start investigating the claim.
Ted Dreyer is a lawyer and adjudicator at Madorin, Snyder LLP in Kitchener. This article should not be relied on as legal advice.
I dread being asked by a client whether he is able to terminate his contract.
There tends to be little margin for error. If a contractor acts too conservatively and continues work in the face of a customer's claim for backcharges or set-off, then the contractor risks incurring additional costs to perform work for which he will not be paid without a prolonged legal battle, if at all. If the contractor acts too aggressively and wrongfully terminates the contract, then he will face a claim for the increased cost incurred by the customer for getting the work done by another contractor on short notice and a claim for delaying the timely completion of the work. Making the right decision is usually critical.
Yet making the right decision is easier said than done. Typically there is a preliminary question as to whether the other party has even breached the contract. The outcome of underlying issues concerning extras, delays, and/or deficiencies is often unpredictable. Even assuming that the other side has breached of contract, it does not necessarily follow that the innocent party has the right to terminate the contract.
The ability to terminate a contract at common law is more limited than is commonly believed. Most breaches of contract do not permit the innocent party to terminate the contract. The usual remedy for a breach of contract is an award of damages sufficient to compensate the innocent party for the consequences of the breach. In the absence of a termination clause, the innocent party will only have a right of termination where the breach of contract deprives the innocent party of substantially the whole benefit of the contract.
Urbacon Building Groups Corp. v. City of Guelph is a 2014 case that illustrates the principle that a breach of contract does not necessarily entitle the innocent party to terminate the contract. The contractor to build a civic administration complex for the City. Substantial performance was to be achieved by August 2008. In mid-September the contract was still only 95 percent complete. The reasons for the delay were disputed. On September 19, 2008, the City terminated the contractor for delay. The Court concluded that, even if the contractor was responsible for the delay, the City had wrongfully terminated the contract. The City was not entitled to terminate the contract simply because the City would incur costs as a result of the delay. The City's expert said that, if the contractor had not been terminated, it may have reached completion in either early or late November. Far from demonstrating that continuing the contract would be intolerable to the Owner, the Court accepted that the termination of the contractor delayed the substantial completion of the project.
I will leave you with two thoughts. First, among the many advantages of using CCDC and CCA standard form contracts is that they include default clauses that help clarify the circumstances where a party is entitled to terminate a contract. Second, a decision to suspend work or terminate a contract is not one that should be made lightly. You should call your lawyer even though he may prefer that you didn't.
Ted Dreyer is a lawyer and certified construction adjudicator at Madorin, Snyder LLP in Kitchener. This article was published in Links2Build and is republished with permission. This article should not be relied on as legal advice.
The construction industry is littered with the bodies of the dead: Comstock and Kappeler Masonry are but two of the construction companies that have ended up in bankruptcy protection. Bankruptcy law affects the construction industry more than most. That is why the construction industry needs to know about subtle changes in bankruptcy law that have put the industry at a disadvantage relative to other creditors, most notably banks.
Bankruptcy in a Nutshell
When a company is assigned or petitioned into bankruptcy, the trustee in bankruptcy liquidates the bankrupt company's assets and collects its debts, insofar as it is economically feasible to do so. The resulting pot of money, called the "estate" of the bankrupt, is divided up among the company's creditors according to the priority rules of the federal Bankruptcy and Insolvency Act. Secured creditors of the bankrupt company (i.e. banks) typically get paid first. If there is anything left over for the unsecured creditors they get paid the same number of cents on the dollar.
Importantly, money held by the bankrupt company in trust for someone else does not form part of the estate of the bankrupt company. That is where Ontario's Construction Act comes into play.
Section 8 of Ontario’s Construction Act
Section 8 of Ontario’s Construction Act (formerly known as the Construction Lien Act) imposes a statutory trust upon any money paid to a general contractor for labour and materials. The beneficiaries of the statutory trust are the subcontractors and suppliers who supplied labour and materials to the project.
In the good old days, the statutory trust created by the Construction Act gave subcontractors and suppliers a limited priority over other creditors of a bankrupt general contractor. Any money paid by an owner to the trustee in bankruptcy were kept separate from the estate of the bankrupt general contractor because they were trust funds. The trustee in bankruptcy would pay the trust funds to the subcontractors and suppliers on the project instead of paying the money to secured and unsecured creditors.
Atlas Block Changed the Law
In the 2014 decision of the Ontario Superior Court of Justice in Royal Bank of Canada v. Atlas Block the Court ruled that only funds subject to a common law trust were to be kept separate from the estate of the bankrupt. I won't bore you with the distinction between statutory and common law trusts. The point is that funds impressed with a statutory trust of the type created by the Construction Act now form part of the estate of the bankrupt in spite of the trust. In other words, as a result of Atlas Block, subcontractors and suppliers lost their limited priority over trust funds.
A Local Example of Atlas Block In Action
The Kappeler Masonry bankruptcy illustrates how the Atlas Block case puts subcontractors and suppliers at a disadvantage relative to banks. The trustee in bankruptcy collected $147,119 from the owner of a project Kappeler had worked on. The trustee in bankruptcy asked the Court to approve payment of the $147,119 to Kappeler's bank, BMO. Hargest Concrete Ltd. of Cambridge was a supplier of Kappeler Masonry on the project that had generated the $147,119 payment. Hargest Concrete Ltd. objected to the proposed payment to BMO. In the good old days, the $147,119 would have been paid to Hargest Concrete Ltd. As a result of the Atlas Block precedent, the Court ordered the trustee in bankruptcy to pay the $147,119 to BMO.
We Need a Legislative Amendment
The Federal government should reverse the effect of the Atlas Block decision. It should amend the Bankruptcy and Insolvency Act to exclude funds impressed with a statutory trust pursuant to the Construction Act from the estate of a bankrupt general contractor.
Giving banks priority over subcontractors and suppliers is bad public policy. First, subcontractors and suppliers should have priority over funds arising from their labour and materials. Second, Atlas Block gives banks an incentive to push general contractors into bankruptcy so they can jump to the front of the line. Third, the law is now being applied differently in different provinces because judges in Alberta wisely declined to follow the Atlas Block precedent. A legislative amendment is needed to bring uniformity to the application of federal law.
In order to convince the Feds to amend the Bankruptcy and Insolvency Act we need as many voices as possible calling for change. I encourage you to raise the issue with your national trade associations and your local MP.
Ted Dreyer is a construction and insurance lawyer at Madorin, Snyder LLP in Kitchener. It was previously published in the Grand Valley Construction Association Journal and is republished with permission. This article should not be relied on as legal advice.
The word on the street is that steel producers did not wait for Donald Trump to apply the steel tariffs to Canada before they increased the price of steel. Contractors and subcontractors are worried about committing to fixed prices without knowing where steel prices are headed.
A material price escalator clause is a potential solution to the problem. However, such clauses are like pet rocks and polyester pants: They have been out of fashion for so long that it is a challenge to find the genuine article. I have combed through the archives and found three examples.
The first is from Bethlehem Steel Co. v. Turner Constr. Co., 2 N.Y.2d 456:
"The price or prices herein stated are based on prices for component materials, labor rates applicable to the fabrication and erection thereof and freight rates, in effect as of the date of this proposal. If, at any time prior to completion of performance of the work to be performed hereunder, any of said material prices, labor rates and/or freight rates shall be increased or decreased, then in respect of any of said work performed thereafter there shall be a corresponding increase or decrease in the prices herein stated."
The second is from Einhorn v. Ceran Corp., 177 N.J. Super. 442 involving a contract for the sale of a residential condominium:
"This agreement is conditioned upon the ability of Seller to complete the unit at present prices for materials and labor. If Seller is at any time or for any reason, unable to complete the unit at the present prices for materials and labor, Seller shall have the option to cancel this contract upon written notice to Buyer, in which event the full deposit shall be returned to Buyer without interest and this agreement cancelled. However, the Buyer shall have the option of paying any increased costs of labor and material, and if Buyer, within ten (10) calendar days after notice of any increase in cost, agrees in writing to pay such increased costs at closing, this agreement shall continue in full force and effect."
And finally, an example from a Canadian case, H.T. Drywall Ltd. v. Carriage Holdings Ltd., 1979 CarswellAlta 452:
"These prices to take effect as of now, May 13, 1976, and will remain until Sept. 30, 1976, or as such time as further increase in cost of materials. At such time, the price increase shall be passed on to the General Contractor, immediately (sic)."
In my view you should consider these clauses as a good starting point rather than the finished product that you can put directly into a contract. Of course, the hard part is likely to be convincing your client to accept an escalator clause in the first place.
Ted Dreyer is a construction and insurance lawyer at Madorin, Snyder LLP. Madorin, Snyder LLP is a full service law firm serving Kitchener, Waterloo, Cambridge, Guelph and the surrounding area. Please visit our construction law page.
The information contained in this article is provided for general information purposes only and does not constitute legal or other professional advice. Readers are advised to seek specific legal advice in relation to any decision or course of action contemplated.
It is not uncommon in the construction industry for a subcontractor to reach out to the owner where the general contractor is in default of its payment obligations to the subcontractor. If keeping the subcontractor working is vital to maintaining the project schedule, the owner may have a strong interest in seeing that the subcontractor get paid. Often there is an underlying concern that the general contractor is using the funds it has received from the owner for something other than paying the trades. While there is more than one way to solve this problem, issuing a joint cheque is one method of ensuring that money paid to a general contractor reaches a particular subcontractor.
How to joint cheques work? A cheque is one example of a 'bill of exchange' and they are regulated by the federal Bills of Exchange Act. Section 62(2) of the Act provides that both parties named in a joint cheque must endorse the cheque before it can be cashed:
Two or more payees
62(2) Where a bill is payable to the order of two or more payees or endorsees who are not partners, all must endorse, unless the one endorsing has authority to endorse for the others.
Going back to the our example, if an owner issues a joint cheque to a subcontractor and a general contractor, the bank will not cash the cheque unless it is endorsed by both the subcontractor and general contractor. Assuming the general contractor agrees that the subcontractor should be paid, a general contractor who receives a joint cheque should endorse the back of the cheque and give it to the subcontractor. The subcontractor can then endorse the cheque and deposit it in the subcontractor's bank account.
Ted Dreyer is a construction and insurance lawyer at Madorin, Snyder LLP. Madorin, Snyder LLP is a full service law firm serving Kitchener, Waterloo, Cambridge, Guelph and the surrounding area.
The information contained in this article is provided for general information purposes only and does not constitute legal or other professional advice. Readers are advised to seek specific legal advice in relation to any decision or course of action contemplated.
Do you need to obtain a WSIB Clearance Certificate from your construction contractor? The short answer is "yes" unless the contractor is performing "exempt home renovation work."
Section 141.1 of the Ontario Workplace Safety and Insurance Act, 1997 requires anyone who hires a contractor to perform construction work to ensure that the contactor has registered with the WSIB and paid its premiums. An owner who obtains a WSIB Clearance Certificate has complied with its obligations pursuant to section 141.1 of the Act. A "Clearance Certificate" is issued free of charge to owners, contractors, and subcontractors by the Workplace Safety Insurance Board (the "WSIB"). The Clearance Certificate shows that the contractor or subcontractor is in good standing with the WSIB. An owner who fails to obtain a Clearance Certificate may be liable for the contractor's payment obligations to the WSIB, including outstanding WSIB premiums.
However, contractors performing "exempt home renovation work" are exempt from section 141.1 of the Act. An owner for whom a contractor is performing "exempt home renovation work" does not need to obtain a Clearance Certificate and has no potential liability for the contractor's payment obligations to the WSIB.
The definition of "exempt home renovation work" is set out at section 12.2 (10) of the Act as follows:
“exempt home renovation work” means construction work that is performed,
by an independent operator, a sole proprietor, a partner in a partnership or an executive officer of a corporation, and
on an existing private residence that is occupied or to be occupied by the person who directly retains the independent operator, sole proprietor, partnership or corporation, or by a member of the person’s family;
“member of the person’s family” means,
the person’s spouse,
the person’s child or grandchild,
the person’s parent, grandparent, father-in-law or mother-in-law,
the person’s sibling, or
anyone whose relationship to the person is a “step” relationship corresponding to one mentioned in clause (b), (c) or (d); (“membre de sa famille”)
“private residence” includes,
a private residence that is used seasonally or for recreational purposes, and
structures that are,
(i)normally incidental or subordinate to the private residence,
(ii)situated on the same site, and
(iii)used exclusively for non-commercial purposes.
The bottom line is that an owner who hires a contractor to perform construction work should obtain a WSIB Clearance Certificate unless the contractor is performing "exempt home renovation work". If you have questions about what qualifies as "exempt home renovation work" you can contact the Workplace Safety Insurance Board at 1-800-387-0750.
The information contained in this article is provided for general information purposes only and does not constitute legal or other professional advice. Readers are advised to seek specific legal advice in relation to any decision or course of action contemplated.
An estimate may give rise to a fixed price contract, which is binding upon a contractor subject to variations in the contract price. But the case of 413784 Ontario Inc. v. Adams[1] illustrates that an estimate may also have a limiting effect on the amount charged by a contractor where the contract price is either time and material or cost plus.
In 413784 Ontario Inc. v. Adams a contractor gave the owner of a vacant lot an estimate of $57,000 to build a custom house. Relying on the estimate, the owner entered into a contract with the contractor to build a custom home for cost plus 10% for overhead and 5% profit. Things did not go as planned. The contractor billed the owner $89,000 before the house was completed. The owner realized that he could not afford to complete the home. He sold the home and took a loss of $68,000. The contractor brought a claim against the owner for a further $11,500. The court found that the actual price for the construction of a custom home should not exceed an estimate by more than 10 or 20 per cent. The Court wrote:
17. I consider that the difference between the estimated cost and the actual cost to finish the house is far too much and the Defendants are entitled to expect that the house would have been built for something within reasonable range of the estimated cost and certainly no more than 10% or 20%.
The Court concluded that the estimate given by the contractor to the owner was negligent because the actual cost of construction exceeded the estimate by 100%. The Court dismissed the contractor’s claim against the owner.
The outcome in 413784 Ontario Inc. v. Adams may have been different if the owner had asked the contractor to perform expensive extras, if the contractor was confronted with unforeseen site conditions, if the owner was more sophisticated, if the estimate was qualified, or if the type of work involved was more difficult to estimate accurately. Nevertheless, 413784 Ontario Inc. v. Adams illustrates that a contractor needs to exercise care if it gives an estimate even if it does not intend to commit to a fixed price.
Ted Dreyer is a construction and insurance lawyer at Madorin, Snyder LLP. Madorin, Snyder LLP is a full service law firm serving Kitchener, Waterloo, Cambridge, Guelph and the surrounding area. Please visit our construction law page.
[1] 413784 Ontario Inc. v. Adams, 1983 CarswellOnt 2939
One of the foibles of Ontario's Construction Act (“Act") is that it does not take project scale into account: The same rules apply to a bathroom renovation as they do to a multi-million dollar infrastructure project. In particular, the obligation to retain a holdback applies to all construction contracts regardless of their size or complexity. While not exactly rocket science, most homeowners and small contractors do not administer the basic holdback properly. Here is a simple example of how the basic holdback works.
Our example involves an addition to an existing home. The contract price is $200,000 plus HST. The contract requires the Owner to pay 30% of the contract price upon the completion of the foundation, 30% when the addition is closed-in, and pay the balance upon completion. The contract further provides that all invoices are due and payable within 30 days.
Section 22 of the Act requires each "payor" on a construction contract to hold back 10% of the price of the services or materials as they are actually supplied under the contract until all liens that may be claimed against the holdback have expired. The obligation to maintain the basic holdback applies despite any wording in the contract to the contrary.
When the foundation is complete, the value of the services and materials supplied by the Contractor is 30% of the contract price, or $60,000. The Contractor should deduct 10% for the basic holdback (i.e. $6,000), apply HST to the balance of $54,000 (i.e. $7,020), and invoice the Owner for a total of $61,020. The Owner should pay the invoice within 30 days.
When the addition is closed in, the value of the services and materials supplied by the Contractor since its last invoice is $60,000. Again, the Contractor should deduct the 10% basic holdback (i.e. $6,000), apply HST to the balance of $54,000, and invoice the Owner for a further $61,020. The Owner should pay the invoice within 30 days.
When the addition is complete, the value of the services and materials supplied by the Contractor since its last invoice is $80,000. The Contractor should again deduct the basic holdback of 10% (i.e. $8,000), apply HST to the balance of $72,000 ($9,360), and invoice the Owner for $81,360. The Owner should pay the invoice within 30 days.
Finally, the Contractor should issue a separate invoice to the Owner for the holdback. The amount of the holdback is 10% of the contract price, or $20,000. The Contractor should apply HST to the value of the holdback (i.e. $2,600), and invoice the Owner for $22,600.
Unlike the other invoices, and despite the contract language that invoices are due and payable 30 days after they are rendered, the holdback invoice is payable by the Owner after any construction lien that may be claimed against the project has expired. All construction liens will have expired 60 days after the contract is complete unless a claim for lien is preserved by registering a claim against title. Therefore, the Owner should have their lawyer review title to the property on the 61st day after the contract is complete. If no claims for lien have been registered against title on or before the 61st day after the contract is complete, then the Owner should pay the basic holdback to the Contractor. If a claim for lien is made before the 61st day, then the Owner should not pay anything further to the Contractor and seek further advice from their lawyer.
Ted Dreyer is a construction lawyer at Madorin, Snyder LLP. Madorin, Snyder LLP is a full service law firm serving Kitchener, Waterloo, Cambridge, Guelph and the surrounding area. Please visit our construction law page.
The information contained in this article is provided for general information purposes only and does not constitute legal or other professional advice. Readers are advised to seek specific legal advice in relation to any decision or course of action contemplated.
With the exception of the excavator, the work of a subcontractor will usually build upon work done by other subcontractors. Furthermore, the performance of any given subcontractor's work will usually depend upon the proper performance of work by other subcontractors. Can a subcontractor be held responsible for the failure of its work if the failure is caused by deficiencies in the preparatory work performed by others?
It depends. It is an implied term of any construction contract that the work will be done in a workmanlike manner. Performing work in a workmanlike manner requires, among other things, that a subcontractor refuse to do work which he knows or ought to know cannot be performed correctly because the preparatory work is deficient.
Stavely Community Centre c.o.b. Stavely Community Association v. L & D Masonry Enterprises Ltd.[1] is a case that considered the problem. A community centre hired a masonry contractor to build a wall. The plans called for metal dowels to be installed in the foundation wall. The wall was to be installed upon the dowels. It was the responsibility of others to install the dowels. When the masonry contractor came to perform its work, the dowels had not been installed. The mason installed the wall anyway. The wall was damaged by wind. The absence of the dowels was a contributing cause of the damage. The Court said that the mason ought to have refused to proceed with the work unless and until the dowels were installed as called for in the plans. The mason was ordered to pay for the damage to the wall.
Performing work in a workmanlike manner does not mean that a subcontractor is the guarantor of the performance of work done by others. The key to the Stavely case is that the deficiency in the work done by others was obvious. A reasonable mason ought to have recognized that the dowels were missing. The outcome of the Stavely case would likely have been different if the deficiencies in the work done by others was not reasonably apparent to the mason upon an inspection of the work.
Ted Dreyer is a construction lawyer at Madorin, Snyder LLP. Madorin, Snyder LLP is a full service law firm serving Kitchener, Waterloo, Cambridge, Guelph and the surrounding area. Please visit our construction law page.
The information contained in this article is provided for general information purposes only and does not constitute legal or other professional advice. Readers are advised to seek specific legal advice in relation to any decision or course of action contemplated.
[1] Stavely Community Centre c.o.b. Stavely Community Association v. L & D Masonry Enterprises Ltd (1983) 2 CLR 46
