the Saskatoon Saskatoon.csc-dcc.ca @CSCSaskatoon February 2019
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LEGAL ARTICLE Tip Your Hat - Why Courts Show Deference to Consultant s Decisions By Misty Alexandre, Robertson Stromberg LLP Like the onus carried by the proverbial middle child, the Consultant is bound to wear the unbiased hat of fairness as they administer the typical construction contract. Perhaps this is why the Courts have consistently paid such deference to the role when disputes reach the courts. A recent Alberta Court of Queen s Bench decision has confirmed that tradition and provided a few clues as to why the courts typically take a back seat to the findings of a Consultant under a contract. In ASC (AB) Facility Inc v. Man-Shield (Alta) Construction (2018 ABQB 130), the primary issue considered by the Court was whether the Court should make its own findings or defer to the findings already made by the Consultant. Man-Shield was contracted to construct a retirement residence in Calgary for the Owner, ASC (AB) Facility Inc. Page+steele/IBI Group Architects acted as the Consultant under the terms of the CCDC2 Contract. The dispute centred around 2 invoices the former submitted prior to Man-Shield s termination from the project, and the latter submitted quite some time thereafter. Relying upon the Consultant s review and determinations on the invoiced work, the Owner withheld payment on the basis that some of the invoiced work was either deficient or incomplete. Man-Shield argued that deference to the Consultant s findings was only applicable during the life of the contract, and that no deference is owed following termination. Justice Antonio, following various past precedents, concluded that deference to the Consultant continues after termination of the contract for a number of reasons, notably: The Consultant has the best opportunity and expertise to determine the matters at stake, and the benefit of the best evidence; The terms of a CCDC2 contract clearly show an intention by the parties that the Consultant s decisions will be binding at least absent demonstrable and significant error, legal or factual ; The parties, in the context of a stipulated price contract, have subjected themselves to the expertise of a payment certifier and not to a nuts and bolts accounting before court ; and Prudent policy considerations require deference to the Consultant s findings, as to defy or ignore certifications would encourage litigation of a very harassing kind, and probably to a great extent. While the Court will generally defer to the Consultant on decisions of fact or contractual interpretations, the situation is slightly different for a Consultant s determination of law, as presumably the Court would be in a position of greater expertise. The Court confirmed that the Consultant was not held to a standard of perfection. Rather, the Consultant s decisions are persuasive in the absence of contrary evidence or demonstrable and significant error. Despite Man-Shield s arguments on various aspects of the Consultant s findings, it was ultimately unable to satisfy the onus of proving a demonstrable or significant error in those findings. As a secondary argument, Man-Shield attempted to discredit the Consultant by providing evidence that his numbers changed over time. The Consultant explained that such changes resulted from correction of superficial errors, or refinement of estimates, each time resulting in Man-Shield s favour. Man-Shield s efforts backfired on this aspect, as the Court reasoned that the Consultant s openness to reviewing his numbers based on new information supports an inference that he took his role seriously and performed it with objectivity. A Consultant s decision is subject to challenge under the dispute provisions of a CCDC2 Contract. However, disputing parties should be aware of the general deference paid by the courts to a Consultant s findings. On matters of fact or contractual interpretation, the burden of overturning a Consultant s findings is a heavy one. csc-dcc.ca saskatoon.csc-dcc.ca The Saskatoon Specifier Feb 2019 Page 3
2019 CONFREENCE csc-dcc.ca saskatoon.csc-dcc.ca The Saskatoon Specifier Feb 2019 Page 4
ABOUT US Our Mission Construction Specifications Canada (CSC) is a national multi-disciplinary, non-profit association with chapters across Canada. CSC is committed to ongoing development and delivery of quality education programs, publications and services for the betterment of the construction community. To this end, CSC pursues the study of systems and procedures which will improve the coordination and dissemination of documentation relevant to the construction process. CSC Seeks to enhance the quality of the design and management aspects of construction activity through programs of publication, education, professional development, and certification, believing that in so doing it can best contribute to the efficiency and effectiveness of the industry as a whole. Our Vision That Construction Specifications Canada is the construction community s first choice for quality documentation, education and networking. Our Values and Core Beliefs Quality, Professionalism, Teamwork, Integrity, Openness & Innovation csc-dcc.ca saskatoon.csc-dcc.ca The Saskatoon Specifier Feb 2019 Page 5
2018 / 2019 EXECUTIVE Contact any member of the executive listed above. Attend one of our regular lunch meetings. Visit the association website at www.csc-dcc.ca. Visit our local chapter website at saskatoon.csc-dcc.ca. Our mailing address Construction Specifications Canada Saskatoon Chapter PO Box 7273 Saskatoon, Saskatchewan, S7K 4J2 Chapter Director Brennen Mills (306) 270-5184 b.mills@fireandflood.ca Chapter Chair Amber Moar (306) 683-2912 amber.moar@spiritsd.ca Chapter Vice-Chair Brad Smith (306) 652-5044 bsmith@henrydowning.ca Education Officer Jenny Dergousoff (306) 667-2409 jenny.dergousoff@stantec.com Interiors Officer Carolyn Saganski (639) 470-3457 saganski.carolyn@gmail.com Membership Officer Carolyn Saganaski (639) 470-3457 saganski.carolyn@gmail.com Architectural Officer Ted Engel (306) 244-5101 Ted.engel@aodbt.com Rick Kalenchuk, CCCA (306) 966-2407 rick.kalenchuk@hotmail.com Engineering Officer Trevor Knoll (306) 477-0655 trevor.knoll@robb-kullman.com Secretary/Treasurer Kelly Boldt, CSP (306) 343-7280 k.boldt@cwce.ca Newsletter Editor Wade Klassen (306) 664-2100 wade.klassen@kaa.ca Bob Spenst, FCSC,CTR, CCCA (306) 382-6312 smpmetalsystems@gmail.com Facility Manager Officer Daryl Cherry (306) 966-4643 daryl.cherry@usask.ca Legal Officer Jared D. Epp (306) 933-1326 j.epp@rslaw.com Co-programming Officer Tyler Grabowski, CTR (306) 514-2579 tyler@penwestsales.com Cory Rodych (306) 242-3315 coryr@cpdist.ca Cole Shepherd (306) 653-2990 cole@tdstone.ca MEMBERSHIP IN CSC CSC offers members of the Design Teamthe opportunity to meet with other members and exchange information. It also affords you the chance to help improve technology and its management, and the means to improve ways in which your ideals are translated into clear, concise and complete documentation. If you are a member of the Building Team, Construction Specifications Canada offers you the opportunity to become involved in formulating specifications. Your valuable input into the programs can help generate time and cost savings as well as improve performance of the building process. The multi-disciplinary composition of CSC allows members of the Supply Teamto meet with other members of the construction team. CSC programs in data filing and information retrieval are geared to present convenient and concise information on your products for proper evaluation and specification. If you are astudent of architecture, engineering or construction technology, CSC will provide you with greater exposure to and a better understanding of the Construction Industry, giving you an excellent opportunity if you plan a career in the construction field. csc-dcc.ca saskatoon.csc-dcc.ca The Saskatoon Specifier Feb 2019 Page 6