b'BENCHMARKSFIVE KEY CONSIDERATIONSIN MAKING OR ASSESSING A FORCE MAJEURE OR ASSOCIATED DELAY CLAIMBy John B. Martens and Daryl A. ChicoineFollowing the unfortunate onset of thedischarge a contracting party when aimpossible. Ultimately, the answer COVID-19 pandemic in Canada, thesupervening, sometimes supernatural,depends on the wording of the contract, phrase force majeure has been raised byevent, beyond control of either party,the circumstances of the event and any many as a contractual cure-all. However,makes performance impossible.applicable legal precedent.the interpretation, scope of applicationThe common thread is that of theThe importance of considering the and ultimate result of a force majeureunexpected, something beyondcontract as a whole is evident when clause is not a simple issue. reasonable human foresight and skill. situations such as COVID-19 arise. As with all contracts, the interpretationSince then, courts have grappled with howAlongside the parties own efforts to and application of the force majeurestrictly to construe and apply such clauses.address this nefarious virus, good faith clause, if such a clause exists in theBecause the clause works to relieve whatefforts and actions have been taken by contract, requires consideration of themay otherwise have been a breach ofthird parties to assist the situation in whole contract and the relevant facts.contract, courts will generally interpretthe community-at-large; such efforts by Contractual force majeure clausesthe clauses in a narrow manner and willtheir nature will also have an impact on originated as a solution to the often- require the party to show that that theprojects. At times, a contract will account harsh consequences of the common lawssituation squarely falls within the clause.for actions taken by public authorities application of the doctrine of frustration.This often requires the party claimingand will allocate risk for such actions. When events occur outside of the partiesthe benefit of a force majeure clause toThe contract may also allocate the risk control that thwart the contract and noshow that they did not cause the eventof material supply and associated delays contractual mechanism is available tothat they claim triggered the operationbetween the parties.address the situation, the doctrine ofof the clause. It may also be required thatWhen assessing a delay, it is important to frustration may operate to permanentlythe event be something that could notdistinguish between whether the delay relieve parties from all obligations byhave reasonably been foreseen, such thatresults from a force majeure event or is ending the contract entirely, leaving anpre-planning could have avoided it. a claim for delay. For example, the CCDC uncertain and unplanned aftermath. Based on the Supreme Court of Canadas2-2008 contemplates three primary A force majeure clause is intended to1975 statement about force majeuresources of delay to a Contractor. First, provide some guidance and structure toclauses, it has been argued that thedelays caused by an action or omission address the consequences of temporaryunforeseen event must have made itof the Owner or Consultant, contrary to (or permanent) situations that impossible to perform a contractualthe Contract, gives rise to a right of the prevent parties from fulfilling their obligation, which is a high standard toContractor to a schedule extension and binding obligations. prove. Since then, depending on thereasonable costs from the Owner (GC In a 1975 decision, the Supreme Court ofwording of the clause, litigants and courts6.5.1). Second, if the Contractor is delayed Canada described force majeure clauseshave grappled with whether the forceby a stop-work order issued by a public as follows:majeure event merely needs to haveauthoritynot as a result of an act or fault created a much more difficult situationof the Contractorthe Contractor may An act of God clause or force majeurefor the party to perform its obligation,also be entitled to a schedule extension clausegenerally operates toas opposed to making performanceand reasonable costs from the OwnerJohn B. Martens is a partner in the constructionDaryl A. Chicoine is a partner in the law practice group at MLT Aikins LLP. construction law practice group at MLT Aikins Reach him at jmartens@mltaikins.com orLLP. Reach him at dchicoine@mltaikins.com (204) 957-4856. or (204) 957-4605.22 BUILD MANITOBAwinnipegconstruction.ca'