October 11, 2016 – Hiring a lawyer is not usually at the top of someone’s To Do list, but there may come a time when you, as a contractor, have no other choice. It’s an expensive process, and you do yourself no favours by loading your lawyer with basic project records and organization issues. Here are my suggestions to keep things running smoothly and a little less pricey:

1. Chronology of key events and key documents

What you consider to be key events and what your lawyer considers key may be two different things. Have a chronology document set out in a spreadsheet format (e.g. Excel) in which you have entered date of a key event and a short summary about what happened.

When there’s a document that applies to this event, be sure to reference it, and provide that reference document to your lawyer. This is an excellent starting point for setting out the background facts.

My starting point, for just about every construction claim or issue I have tackled, is the contract(s) in question.

2. Lien claims

Typically, the registration of a claim for lien requires a quick response from your lawyer. Provide a copy of the contract giving rise to your claim plus:

•    a full state of accounts (including copies of the outstanding invoices)
•    a description of the work performed
•    your start and end dates for the work, and
    –    when in Ontario, the publication date of
    the certificate of substantial performance,
    or
    –    when in other common law jurisdictions,
    a copy of any substantial performance
    certificate

You should also identify the property on which you did the work with its municipal address. When it’s new work in a greenfield, you can use a location from Google Maps or similar.

3. Damages

Almost every construction claim will involve a claim for damages. Essentially, there are two parts to any lawsuit: liability and damages.

If you have not suffered any damages—whether out-of-pocket expenses or costs that were unanticipated, or actual liquidated damages for monies owing pursuant to a contract—or have no way to otherwise prove your damages, it becomes an uphill battle.

After reviewing the contract, some lawyers (like me) will focus on the damages—the amount being claimed by you and the potential amount being claimed against you. If we cannot find any damages, then there is likely no claim.

Have a statement of account available, as well as a summary of your project costing records, to show where you have actually incurred damages. Those will go a long way toward helping your lawyer calculate potential damages.  

Dan Leduc is a partner in the law firm Norton Rose Fulbright Canada LLP and practices almost exclusively in construction law. He is frequently called upon to advise and represent owners, engineers, subcontractors, suppliers and builders in such front-end services as contract review, tender issues and general construction matters, as well as in litigation and arbitration. Dan can be reached at 613-867-7171 or dan.leduc@nortonrosefulbright.com.

* This article also appears in the October 2016 edition of Electrical Business Magazine. Check out our ARCHIVE page for back issues.