b'TCA MEMBERS DAYContractors making claims should be aware that typically, courts will stick to the wording in the agreed project contract.THE INTERPRETATION OF FORCE MAJEURE IS NOT WRITTEN However, the courts may also recognize the unique intervention by governments to shut down jobsites and determine whether sites are essential or non-essential. TheseIN LAW. IN FACT, THERE HAS BEEN NO LEGAL ACTION IN issues could affect court decisions when deciding responsibility for increased costs or time lost. THE COURTS TAKEN ON FM SINCE 1976 AND THE TERM HAS FORCE MAJEUREThe panel then reviewed contract clausesSIMPLY BEEN LIMPING ALONG SINCE THENthat might provide legal support for contractors and be a source for cost and time recovery. The clause most cited involves force majeure (FM). The pandemic is an event beyond thethe agreement works. A key claim area ispanel discussion. In his remarks, he said, contract parties control and accordinglyproductivity. Statistics from constructionThough the uncertainty surrounding the contractor should be allowed relief.industry consultants have determinedCOVID claims will continue for some time However, this relief in some cases wouldthat a drop in productivity of 18 per centyet, contractors must learn what to focus be an extension of time, not cost recovery. on jobsites has occurred during theon to make the claims process workpandemic, including time for increasedfor them.The panel felt it should be noted that theresafety measures.is no legal definition of FM and its contractMollenhauer then summarized the key terms are murky at best when phrases likeContractors must detail the productivitysteps to follow: know your contract terms, acts of God are used. The interpretationloss. The panel recommended that theirproperly document data for the claim,of FM is not written in law. In fact, thereCritical Path Method software (CPM)stick to on-time communication of has been no legal action in the courtsbe updated every month and quantify taken on FM since 1976 and the term hasproductivity losses. The CPM shouldconcerns, and sit down with owners tosimply been limping along since then. include labour schedules for each tradefind solutions.and use separate account codes for COVID Other legal issues that have arisen involveissues. Also, they need to provide an the interpretation of government shutdownaccurate picture of the losses that include orders as stop work orders, and if thecomparisons of productivity prior to and enhanced jobsite safety requirementsduring COVID. that increased costs and slowed down work performance are changes inThis detailed approach to claims provides law. The panel debated whether thesethe basis for negotiations with owners and contractual provisions allow contractors topotential resolution ahead of goingget compensation for losses because ofto court.the unusual circumstances created by the pandemic. They agreed that the answersWHATS HAPPENING NOW Sponsorsare unclear. The panel looked at what is currently happening in the industry concerningTCA thanks the two sponsors of its MAKING A CLAIM COVID claims. The answer is that owners2021 Members Day for their support The panel reviewed the steps to followand contractors are sitting down andof the event:when submitting a claim to the projecttalking to resolve claims for losses on the owner. Most importantly, contractors mustjobsite. If needed, an arbitrator or mediatorThe Home Depotknow their contract terms, particularlyis used. The last means of dispute terms requiring written notice withinresolution is the courts. Modu-Loc Fence Rentalsreasonable time. If contractors do not meet these terms when submittingContractors with claims need to bring claims, they could be simply dismissed.owners to the table as soon as possible toThe association also thanks the many One suggestion is for contractors tostart the process of resolving outstandingmembers and guests who attended communicate with project owners as soonissues. It is important to use real datathis years virtual event and looks as claim concerns arise. This will helptaken from the jobsite and keep theforward to its 2022 Members Day. ensure that time limits in the contract arerelationship positive. This approach willIt shares everyones hope that by being met. provide contractors with some control overthen the event will return to its usual the outcome and create a win-win for face-to-face format, complete with The panel then looked at what should beboth parties. a delicious outdoor barbecue at the included in the claim itself. In addition toassociations head office inproper notice, the claim should be basedJohn Mollenhauer, president and CEO ofRichmond Hill.on the contract schedules that detail howTCA, then provided a summation of the BUILDERSDIGEST Quarter 2 202121'