Let’s Stick to the Cordless Drills, Shall We?  Preventative Medicine Helps Avoid Litigation


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Most of us over the age of 18 have heard it at some point – VZZZZZZZZZ! The whine of the dental drill revving up just before going to work on our favourite molar. It’s at that moment when we inevitably think “why didn’t I just brush for a full 2 minutes twice a day like I was told to when I was here last year?” Of course we know the reasons why. We had other priorities. We thought we could make up for it by doing a really good job brushing the next day. Maybe we thought ‘it’s not really necessary – those dentists are just in cahoots with the toothbrush manufacturers.’ And besides, we’ve been brushing for 30 seconds each time for the last 20 years and nothing bad has happened.

In my business of construction litigation the equivalent of the dental drill whine is the phrase “Court is in session - all rise” (disclaimer: this is purely an illustrative analogy and I make no assertion that our Court Clerks’ voices are ever “whiny”). The floss, brushes, and mouthwash are the contract documents.

It’s in litigation that all of the things done or not done on a construction project come home to roost. In my experience, more than anything else construction litigation arises from one of 2 things: 1) Failure to enter into a written contract confirming the essential elements of the deal; and, more often, 2) When contracts are written, failure to follow the change procedures set out in them. Writing down what you’re going to do and updating what’s written down when things change are the tooth-brushing of construction work. There’s nothing exciting or glamourous about them. Nobody enjoys doing them. They often seem to get in the way of, or at least delay seemingly more important things like moving dirt, pouring concrete, getting the bills out, and ordering that travertine tile that the owner just has to have. They can also save you a lot of headaches, time, and money later.

The Canadian construction industry is fortunate to have access to the standard documents drafted and revised from time to time by the Canadian Construction Documents Committee (CCDC). Those documents, which can be used in a wide range of situations and construction models, are carefully crafted to address the many issues that can arise on a project. They’re also designed to provide a fair allocation of risks. However, if you don’t use those documents properly you may find yourself on the sharp end of a clause or two, such as “6.1.2 The Design-Builder shall not perform a change in the Work without a Change Order or a Change Directive…” Don’t think for a second that an owner who seemed to care only about getting that upgraded tile installed at the time won’t turn around and use this type of clause against you when it comes time to pay, particularly if the price is significantly higher than the owner had contemplated and if there are other strains on the business relationship.

Diligent use of contract documents and timely and accurate use of Change Orders and Change Directives before the change work is done is preventative medicine that may well keep you from having to visit me or another friendly neighbourhood construction litigator later. I can’t tell you how many clients tell me “yes, I know – we’ll be better about documenting the work in the future.” Yet I’m not shifting my practice to the glamourous world of tax law just yet (probably for the same reason that dentists don’t hesitate to hand you toothbrushes and floss as you’re heading out the door). As difficult or bothersome as it may seem at the time, I urge you to do your best to do whatever it takes to avoid thinking “why didn’t I just get a Change Order signed before doing the work like my lawyer told me to the last time I was here?” You really don’t want to hear that Court Clerk’s lovely voice if you can avoid it.

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