b'BENCHMARKSMITIGATING DAMAGES:PRACTICAL CONSIDERATIONSFOR GENERAL CONTRACTORS By Alexandre Mireault, Partner, MLT Aikins LLPWhen a project stalls as a resultlosses they could have avoided bysubtrade to remediate the deficiencies of subcontractor neglect, generaltaking reasonable steps. before terminating the subcontract. Under contractors need to take appropriateREASONABLE STEPS most circumstances, the subcontractor steps to limit the costs of completing theTO MITIGATE DAMAGES is often found to have the right to subcontracted work before terminating Reasonable steps and avoidableremedy any defects in the work himself. a subcontract. losses are fact-specific; they will varyIf it is deprived of that right, the general While the general contractor may wantfrom project to project. However, thecontractors right to claim against the to take action against a subtrade thatfollowing considerations can help asubcontractor may be limited.has breached its subcontract, theygeneral contractor take steps to ensureGeneral contractors should act promptly should not forget that they have anit mitigates its damages.to remediate deficiencies and complete obligation to mitigate their damages. IfGeneral contractors should opt for thethe projectthe obligation to mitigate they fail to do so, there is no guaranteeleast disruptive and least costly remedialdamages entails an obligation to mitigate that the court will award damages equalsolution to complete the subcontracteddelays. However, general contractors can to the costs they incur to complete scope of work. They are expected totake the time necessary to determine the the project. find the most cost-effective solutions tocause of deficiencies.A plaintiff is generally entitled to beresolve issues, though a cost-effectiveMLT Aikins LLP is available to assist you put in as good a position as it wouldsolution might not always meanin navigating the complexities of your have been in if there had been properaccepting the lowest price solution.projects and to help you take reasonable performance by the defendant.Factors such as mobilization costs, delaysteps to avoid unnecessary losses. To However, the defendant cannot betimes and seasonal weather conditionslearn more, contact a member of our required to pay for avoidable losses,can justify a general contractors courseconstruction practice group. which would result in an increase in theof action and can affect how the court damages payable to the plaintiff. Whereassesses a claim for damages. Note: This article is of a general nature a plaintiff fails to limit its losses, the courtA general contractor should be mindfulonly and is not exhaustive of all possible will find that it in fact has caused theof the scope of work to be remediated.legal rights or remedies. In addition, laws extra losses it suffers. It can be tempting to redo a subtradesmay change over time and should be work in its entirety, but the court willinterpreted only in the context of particular For this reason, a general contractoroften declare it excessive to do so if acircumstances such that these materials has an obligation to mitigate (meaningless invasive and simpler fix is available. are not intended to be relied upon or taken to limit) its damages when terminating aas legal advice or opinion. Readers should subcontract. As a general rule, a generalThe general contractor should considerconsult a legal professional for specific contractor will not be able to recoverwhether the circumstances allow for theadvice in any particular situation.S U R E T Y & I N S U R A N C E L T D .2020INSURANCE BUSINESS Local experts advisingCANADA AWARDS local contractors.Manitobas Leading Construction Insurance and Bonding Broker.5th Floor305 Broadway, Winnipeg, MB R3C 3J7 204.560.2508apexsurety.ca26 BUILD MANITOBAwinnipegconstruction.ca'