Construction Holiday: Can You Make a Claim?
In what circumstances is a general contractor justified in claiming a price adjustment or extra time for completing the work, in connection with Quebec’s mandatory construction holiday?
The contractor can ask for an extension of the completion deadline if it can show that but for an event beyond its control and for which it is not legally responsible, it would have been able to complete the work before the start of the construction holiday.
To obtain an adjustment of the contract price, the contractor must also establish that the situation is attributable to another party, as opposed to force majeure.
In the following examples, the contractor succeeded in showing that it would have completed the work before July 22, 2018:
1- Had it not been for the strike in the summer of 2017
In addition to the extension it was entitled to on account of the work stoppage (see our article of May 25, 2017 entitled Grève et retard sur le chantier (in French only)), it was entitled to an extension due to the construction holiday.
But because this was an occurrence akin to force majeure, the contractor was not entitled to any increase in the contract price.
2- Had it not been for the illegal strike in the summer of 2018
In addition to an extension by the project owner, the contractor was able to claim site maintenance costs during the construction holiday from its subcontractors and/or the crane operators at fault (see our article of June 27, 2018 entitled Grève illégale des grutiers : vérité et conséquences (in French only)).
3- Had it not been for the issuance of a change order by the project owner and its professionals
Here the contractor could include the effect of the construction holiday in its request for payment due to the change order, or in its proposed amendment to the contract pursuant to the change order.
4- Had it not been for a slowdown on the site caused by a subcontractor (see our article of November 3, 2015 entitled Forcing a Subcontractor to Finish Performing its Contract)
The contractor could claim for the consequences of the construction holiday in its claim against the subcontractor at fault, including the amount of the penalties it was exposed to, as it was not entitled to an extension from the project owner (because, vis-à-vis the project owner, unless otherwise provided in their contract, the general contractor is responsible for its subcontractors).
Always remember that the contract provisions take precedence, and that the exercise of the rights provided for therein, including extensions of deadlines and price adjustments, are subject to compliance with the procedure outlined in the contract (see our article of April 23, 2015 entitled La procédure prévue au contrat d’entreprise : une question de vie ou de mort pour vos réclamations (in French only)).
Have a great holiday!