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Spike in Steel Prices Renews Interest in Escalator Clauses

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.

 

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Making Payment With Joint Cheques

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.

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Update on Tarion Warranty Claims

Do builders face double jeopardy on the Tarion Warranty? 

 

The Ontario New Home Warranties Plan Act  ("ONHWPA") is consumer protection legislation for new home buyers.  ONHWPA deems certain warranties with respect to the quality of materials and workmanship (the "Tarion Warranty") to be terms of any contract between a builder and a new home buyer.

 

Tarion is a non-profit corporation that is designated by the government to adjudicate claims by new home buyers regarding alleged breaches of the Tarion Warranty.  At the risk of oversimplifying, there are two stages to the Tarion claims process.  The first stage is the conciliation process.  If the parties cannot resolve their dispute amongst themselves, then the conciliation process ends when Tarion issues a ruling on the new home buyer's warranty claim.  The second stage of the Tarion claims process is the new home buyer's right of appeal to the Licence Appeal Tribunal.

 

Tarion does not have exclusive jurisdiction to enforce the Tarion Warranty.  The Tarion Warranty forms part of a contract between the builder and the new home buyer, and the Court system has concurrent jurisdiction to enforce the terms of a contract.  Therefore, a new home buyer can elect to make a claim to Tarion or it can start a lawsuit against the builder.  

 

Can a new home buyer do both?  Yes and no.     

 

Metropolitan Toronto Condominium Corporation No. 1352 v. Newport Beach Development Inc. is a 2012 decision of the Ontario Court of Appeal.  A condominium corporation made a claim to Tarion.  The condominium corporation lost at the conciliation stage, and it started an appeal before the Licence Appeal Tribunal.  Significantly, the condominium corporation abandoned its appeal to the Licence Appeal Tribunal before a ruling was made.  The condominium corporation then brought a lawsuit against the builder.  The builder brought a motion to have the condominium corporation's lawsuit struck out on the basis that the condominium corporation was bound by the outcome the Tarion claims process.  The Court of Appeal dismissed the builder's motion.  The Court of Appeal decided that a ruling by Tarion against a new home buyer at the conciliation stage did not bind the new home buyer or the Court in a lawsuit regarding a breach of the Tarion Warranty. 

 

Therefore, in the Metropolitan case the new home buyer was permitted to re-litigate a warranty claim that it had lost in the conciliation stage of the Tarion claims process.   

 

The outcome was different in the Gorscak case, summarized below.  

 

Gorscak v. 1138319 Ontario Inc. is a 2003 decision of the Ontario Superior Court of Justice.  The new home buyer made a Tarion claim regarding allegedly deficient brickwork.  The new home buyer lost at the conciliation stage and lost again on appeal to the License Appeal Tribunal. The new home buyer then brought a lawsuit against the builder seeking the replacement of all the brick.  The builder brought a motion for a stay of the lawsuit.  The Court granted the builder's motion and stayed the new home buyer's lawsuit.  The Court would not permit the new home buyer to re-litigate a warranty claim that had been already been ruled upon by the License Appeal Tribunal.  

 

The bottom line is that the Court of Appeal has permitted new home buyers two kicks at the can provided they abandon the Tarion claims process before the end of the second stage of the process.

 

The foregoing is for information purposes only and is not legal advice.  If you are interested in receiving more information, feel free to contact us.

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Hiring a Contractor? Do you need to obtain a WSIB Clearance Certificate?

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,

 

  1. by an independent operator, a sole proprietor, a partner in a partnership or an executive officer of a corporation, and
  2. 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,

  1. the person’s spouse,
  2. the person’s child or grandchild,
  3. the person’s parent, grandparent, father-in-law or mother-in-law,
  4. the person’s sibling, or
  5. 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,

  1. a private residence that is used seasonally or for recreational purposes, and
  2. 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.

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Is a Contractor Bound By An Estimate?

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

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A Simple Example of How the Basic Holdback Works

One of the foibles of Ontario's Construction Lien 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 45 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 46th day after the contract is complete.  If no claims for lien have been registered against title on or before the 46th 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 46th 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.

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Can a Subcontractor Be Held Responsible for Improper "Work Done By Others"?

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 

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