b'LEGAL COLUMNFORCE MAJEURE CLAUSESLONG OVERDUE FOR A REVIEWBY NATHAN MACDERMOTT, PIHL LAW CORPORATIONince the start of the3.often place the risk of non-performance Show that they have done their best S COVID-19 pandemic, thereto mitigate the impact.on the contractor if the event is has been significant discussionforeseeable. Alternatively, the risk could surrounding force majeure clauses in allAfter taking the appropriate steps,fall on the owner if the event is seen as industries. Although the constructionthe contractor should be providedunforeseeable.industry has managed to remain strongadditional time to complete their work and forge ahead during these uncertainthrough these provisions. However,If the contract is silent with respect to times, these clauses can have a majorthey would not be entitled to additionalforce majeure events, the parties may also impact on a number of areas withincompensation unless they could showturn to the doctrine of frustration in an a construction project. Most largerthat the actions of the owner or theattempt to obtain relief. This doctrine projects are governed by the standardconsultant caused the contractor to incurapplies where the contract is either those additional costs. The contractorimpossible to perform or performance form construction contracts (i.e. CCDCcould also be entitled to compensationwould be radically different from what contracts). However, projects operatingif a change in the law has forced them towas required under the contract. The under different documents will havetake additional steps, which caused delay. bar for the doctrine of frustration is very their own specific language relating tohigh, so parties will likely be better off force majeure events. In certain circumstances, the contractorwith a well-drafted force majeure clause. could potentially terminate the contractAlthough many parties may not have There is language in the CCDCif the event continues to prevent themlooked too closely at force majeure documents that can potentially allowfrom working for an extended period.clauses and the surrounding language a contractor to obtain further time toThere are a number of additional clauseswithin their contract at the time they complete the work or even excuse themwithin the CCDC documents thatentered into the agreement, it may from performance entirely as a resultgovern how the contractor, consultantbe a good time to review them. These of an event that is out of their control,and owner must deal with such anprovisions can have a major impact on which might include COVID-19. Toevent, which should also be reviewed ifif and how the parties proceed on any make use of such a clause in a CCDCa party is looking to use such an eventparticular project in these turbulent document in relation to a delay, theto change the timing and/or costingtimes. Now that the COVID-19 contractor would have to do theunder the agreement. Outside of thepandemic has brought peoples attention following:standard form documents, parties areto force majeure clauses, it is likely a generally free to add terms dealing withgood time to seek legal advice on how 1.Show that the event caused delay, how the parties handle force majeurebest to include these clauses in contracts events, and those terms will dictatemoving forward.what behaviour is appropriate and/or 2.required under the contract. Without aDisclaimer: The information provided in this article Provide the appropriate notice to is merely for informational purposes and is not legal the owner within 10 days of theforce majeure clause (or potentially withadvice. Prior to entering any contract, parties should start of such a delay, and an ambiguous clause), the courts willseek independent legal advice.Add Value, Beauty, Distinction to Your Projects Use MasonryCivil Construction 250-762-7259Site ServicingRoad Building Proud SICA Member for over 35 years!Earth Moving Complete Masonry ContractingBrick Block Stone Facings Glass Blocks Kelowna B.C. mweiss.inc@gmail.com cruisercon@shaw.ca Office: (778) 753-6499 www.mweissmasonryinc.caTruck & Crane ServicesForkliftsBobcat & Excavating ServicesSICA CONSTRUCTION REVIEWFall 202031'