
Publication
Canadian employment and labour quarterly
This newsletter will keep employers up to date on Canadian employment and labour developments and best practices.
Author:
Canada | Publication | September 2024
The amount of information to be collected, organized, assimilated and communicated can quickly take on overwhelming proportions in construction disputes. Plans and specifications, bids, contracts, amendments, disclosures, timelines, minutes, reports, requests and notices of changes, pictures and correspondence: those are the many documents emanating from a work site that will shed light on the ins and outs for the parties, their lawyers and potential decision-makers.
What do you need to know about contractors’ obligations in managing this documentation and, even more importantly, how should you go about it?
The parties to a dispute, existing or merely anticipated, have a legal obligation to preserve the relevant evidence, regardless of its form1. They also have an obligation to communicate such information, where appropriate and subject to the justification of certain grounds2 or privileges to be exempted from doing so. This communication must be orderly, so that the relationship between the information conveyed and the requests is consistent. Sending information “in bulk”, interspersed with information that is not relevant to the requests made, is a practice that is discouraged by the courts, which are increasingly ordering that the information be cleaned up or even going so far as to impose costs.
This places a positive obligation on contractors, both plaintiffs and defendants, to preserve, gather and communicate the masses of information emanating from their work sites. If information is not managed properly, this burden can quickly become overwhelming and costly, resulting in human resources being tied up, multiple interlocutory applications and procedural delays.
This management must be considered with greater importance by contractors acting as plaintiffs, who generally bear the burden of proof. It is up to them to determine the extent of the damages they incurred, as well as their attribution to each of the causes and to each of the stakeholders. To discharge this burden of proof and optimize the chances of success, contractors should be careful to maintain detailed documents regarding the use of workers, equipment and materials on the work site as well as records detailing the work performed each day and the rate of production. Proof of additional disbursements to a supplier should, for example, be supported by each purchase order, invoice and proof of payment. The best proof lies in this raw data and not on the basis of subsequent estimates, which may even be inadmissible as evidence.
Information management processes should systematically be part of the best practices of construction contractors. Here are some suggestions:
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This work may seem tedious upstream, but in reality, it represents only a fraction of the time generally required downstream to manage information in the event of litigation. Implementing efficient information management processes should not be seen as a financial and human expense in managing construction sites, but rather as a guarantee of potential mass savings and, what’s more, a better chance of success in the outcome of a dispute.
In the end, we must avoid believing that these measures should only be implemented in the context of major construction projects. In fact, it is actually the opposite. It is more often in disputes of limited size that there is a disproportionate amount of time wasted tracking down information in relation to the monetary stakes involved.
Publication
This newsletter will keep employers up to date on Canadian employment and labour developments and best practices.
Publication
In this edition we provide a reminder of the main provisions and implications of the Terrorism (Protection of Premises) Act 2025 since its Royal Assent, and discuss the potential for a long-awaited strategic shift for infrastructure projects following the formation of the National Infrastructure and Service Transformation Authority. We also discuss the outcome and significance of an interesting court of appeal case considering boundary agreements and provide an update on recent tax events affecting the real estate sector.
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Te Board of Directors of Pemex approved the Guidelines for Mixed Development Schemes of the Public State Company, Petróleos Mexicanos (Agreement CA-025/2025, the “Guidelines”), published in the Federal Official Gazette (DOF) on April 29, 2025.
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