b'BENCHMARKSTAKE NOTICE:THE POTENTIAL IMPACT OF NOTICE PROVISIONS IN A CONSTRUCTION CONTRACTBy John B. Martens and Daryl A. ChicoineWhen parties to an agreement negotiate,occasioned by the general contractor andContract. It appears the parties had sign, then shelve the Contract until thethe owner. agreed to use the Canadian Construction end of the Project, they do so at their peril.The issue to be determined was whetherAssociation (CCA)s standard form Many standard construction contractsthe delay claims of both parties shouldStipulated Price Subcontract. Those include provisions requiring notice ofbe dismissed on the basis that insufficientprovisions, much like other CCA or intent to claim delays, extra costs andnotice and/or lack of supportingCanadian Construction Documents disputes with findings. These often haveinformation was provided.Committee (CCDC) contracts, required strict time periods that, depending on thetimely Notice in Writing of the intent facts of the situation, will be enforced byto claim. They also require that upon the Courts.Where partiescommencement of the event or seriesof events giving rise to the claim, the In Newton Mechanical/Electrical Inc. v.use more open- party intending to make a claim take all reasonable measures to mitigate any loss NDL Construction Ltd., a recent 2019or expense incurred as a result of the decision of the Manitoba Court ofended wordsevent or circumstance, and keep records Queens Bench, the Judge directed thatnecessary to support the claim. After the the impact of notice provisions on thesuch as timelyinitial notice, a party is required to submit, claims of the parties was an issue thatwithin a reasonable time, a detailed should be determined on a notice or withinaccount of the amount claimed and the preliminary basis.grounds upon which the claim is based. The dispute in question arose froma reasonableThe subcontractor argued that the general the construction of a new school incontractors proposed change notice northern Manitoba. The plaintiff was thegiven after substantial completion and mechanical and electrical subcontractor.time, thereseeking a claim for delay stemming back The defendant was the general contractor.almost two and a half years, was barred. The project was approximately onemay be greaterNot only did the notice not comply with year delayed and the parties blamedthe contractual requirement that it be timely; the delay also resulted in the each other.Following substantiallatitude to dolost opportunity to claim credits to the completion, the general contractor sent the subcontractor a proposed changeContract price. The general contractor notice for costs it incurred as a result ofjustice betweenargued that it had provided sufficient the delays it alleged were attributablenotice in an email well prior and that to the subcontractor. The bulk of thethe parties. the subcontractor was aware of the claim related to the cost of room anddissatisfaction with the progress and the board for its personnel beyond theadjustments that would be made at the expected completion date. In response,end of the job. The general contractor the subcontractor advanced its ownIn the decision, the Judge reproducedargued that it could only finalize its claim claim for extras attributable to the delaysthe applicable notice provisions of theafter substantial completion.John 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) 957-4605.26 BUILD MANITOBAwinnipegconstruction.ca'