Question 1
Architects and engineers responsibilities and obligations
Architects and engineers are the consultants in this construction project. The duties of engineers are
outlined in the Code of Ethics of Engineers while those of the architects are provided in the Code of
Ethics of Architects. Their duties, responsibilities and obligations in relation to this project are
analogous.
The first responsibility is ensuring that the plans, recommendations, proposals and reports given are
accurate. 1 Failure to provide accurate reports and plans will be deemed to be negligence. The architects
and structural engineer in the project above were negligent and did not discharge their professional
obligations with competence.
Architects and engineers enter into an agreement on the scope of the project and the remuneration
terms. The remuneration terms depending on the scope are provided to the client who decides on
whether to accept the offer or not.
General Contractor’s duties
A general contractor is engaged by the owner to construct the project. The general contractor has the
role of hiring subcontractors to perform separate works in the construction project. In event of delay
events and incorrect reports from the consultant personnel, the general contractor should follow the
construction contracts claim procedure.
The construction contracts claim procedure enables the contractor to explain the delay events and other
barriers that would warrant him a compensation based on the contract agreement. In Construction
Infrabec inc. v Paul Savard, Entrepreneur électricien inc., 2012 QCCA 2304, the Court of Appeal of
Quebec held that the general contractor has three years to file a cause of action before the court.
The general contractor is also responsible for ensuring that the construction is carried out effectively.
Owner’s responsibilities and obligations
The owner of a project is the person who develops the project. The owner engages parties to design and
construct the project and remunerates them for the work done. The owner will also be responsible for
increment in the remuneration due to a contractor if the general contractor succeeds in a construction
contracts claim against him.
All the contracts having a fixed contract price implies that the owner will be responsible for any
additional costs incurred by the general contractor based on personnel employed by him. The owner will
therefore be responsible for additional costs that will result from the inconsistencies in the report
provided by the consultants.
Question 2.
1 Code of Ethics of Engineers R.R.Q., 1981, c. I-9, r. 3, s. 3.02.04; Code of ethics of Architects O.C. 901-2011, s. 16.
Would obligations and responsibilities of the contractor be different?
The responsibilities and obligations of the contractor will be different. Contracts issued by public bodies
are regulated by Regulation respecting construction contracts of public bodies and Act respecting
contracting by public bodies. 2
The responsibilities of the contractor under the regulations will include attempting amicable dispute
resolution with the public body. 3 Amicable resolution would involve negotiation, mediation and
arbitration. If the parties are unable to resolve the dispute amicably, the contractor can lodge a claim to
the public body and proceed to a court of justice or an adjudicative body. 4 Negotiations on civil
engineering work are conducted between the manager of the public body and the contractor. 5
The dispute resolution mechanism employed will not be filing of a claim as the first resort but will
involve alternative dispute resolution mechanisms. The general contractor will be entitled to file a
construction contract claim against the City of Laval after exhausting amicable dispute resolution
mechanisms.
The architects and engineer are the mandatories of the city, responsible for design, project
management and supervision, does this change their responsibilities?
The governing statutes of the ethics of the engineers and architects are the Code of Ethics of the
Engineers and the Code of Ethics of the Architects respectively. Their responsibilities will not change
depending on the type of construction contract they enter into. Their duties of integrity, due diligence
and care will remain unfettered.
The engineer and architect will have acted with incompetence by providing reports inconsistent with the
actual conditions of the construction site. The responsibilities, duties and obligations of the architects
and engineers as laid out in their codes of ethics are applicable regardless of the type of construction
contracts they enter into. The obligation of providing accurate reports, plans and proposals remain
constant.
The engineer and architect will be responsible for the inconsistencies in the report and plans. They will
be liable for misrepresentation. The dispute between them can be solved through alternative dispute
resolution mechanisms as provided in the regulations regarding public bodies’ construction contracts
above.
Question 3
Whether article 2119 would apply in the situation
2 chapter C-65.1, r. 5,Regulation respecting construction contracts of public bodies; Act respecting contracting by
public bodies (chapter C-65.1, a. 23)
3 Regulation respecting construction contracts of public bodies O.C. 532-2008, s. 50
4 Regulation respecting construction contracts of public bodies O.C. 532-2008, s. 54
5 Regulation respecting construction contracts of public bodies O.C. 532-2008, s. 47.
Article 2119 of the Civil Code of Quebec relieves the contractor of liability only if it is shown that the
defects in the work resulted from decisions imposed by client on selection of land or materials or
subcontractors, experts and construction methods employed. Additionally, the contractor can be
relieved of liability on proof that the defects result from errors occasioned by the expert opinions or
plans provided by an architect who is selected by the client or owner. 6
This article should be invoked if the loss in the work is evident five years upon its completion. 7 Article
2119 lays down the basis for exclusion from liability under article 2118. The general contractor will be
exonerated from liability if he proves that the loss in the work was caused by the client through
personnel employed by the client or selection of land and construction methods used during the
construction period.
The case of NC-Lavalin inc. (Terratech inc. et SNC-Lavalin Environnement inc.) c. Deguise, 2020 QCCA 495
laid down the criteria for liability of general contractor for loss or destruction of a building. The criteria
set out is four-fold. Firstly, the loss has to be in relation to an immovable real estate property. Secondly,
there has to be loss of the property in whole or in part. Thirdly, the loss must be as a result of faulty
design, faulty construction, faulty production or ground defects. Lastly, the loss has to have occurred
within five years of completion of the construction project.
To claim under article 2119, a general contractor has to be exonerating himself from liability in article
2118. For the general contractor to rely on the provisions of article 2119, he must show that the grounds
for liability set out in article 2118 are not attributable to him. The general contractor can relieve himself
from liability for any defects or losses that will be incurred in relation to the property. The basis for this
argument is that the general contractor will succeed in the test for exemption from liability.
This is so because the contractor can prove that the defect or loss that may occur within five years of the
construction, was caused by the client’s intervention in the construction. The clients kept on interfering
with the construction work site and imposed methods of work that are contrary to rules of art.
Question 4.
Potential risks for owners, consultants and contractors
6 CCQ-1991 article 2119 (1991, c. 64, a. 2119; I.N. 2014-05-01; 2016, c. 4, s. 232; 2020, c. 15, s. 58)
7 CCQ-1991 article 2118 (1991, c. 64, a. 2118; I.N. 2014-05-01; 2020, c. 15, s. 57)
Incomplete contract documents and drawings increase the risk of major cost overruns and delays in
completion. The risks for the owners relying on incomplete documentation includes;
Defective construction, building or property by the contractor.
Delays in completion of their construction project
Increased costs in event of inconsistency in the incomplete drawings
Potential risks to the consultants include;
Inaccurate plans and reports
Low quality output
Design process taking a long time.
Potential risks for contractors are;
Safety hazards resulting in accidents of the workers.
Contractor delays
Project team conflicts
Labor or workforce shortages
Litigation issues
Strikes and picketing by workers
The prominent risks that cut across all the parties is the risk of delays and cost overruns. Delays will be
caused by strikes and picketing, workforce shortages, delay in the production of design plans,
inconsistencies in the plans and reports provided by the consultants and litigation issues.
Cost overruns are as a result of inefficient budgeting and funds allocation for the construction project.
The unbudgeted costs could be attributable to inconsistencies in the design plans and reports by
engineers and costs incurred in curing the losses and damages incurred by failure to mitigate risks.
How to anticipate mitigation of potential damages with regards to incomplete drawings.
Risk mitigation is a method of reducing the risk that is posed by a certain situation. In event of risks, the
risk mitigation mechanisms likely to be adopted are; risk transfer, risk acceptance, risk buffering and risk
avoidance.
Risk transfer involves sharing the risk with a third party. For instance, the owner of the construction
project can take out an insurance cover to prevent cost overruns. Risk buffering means employing a
reserve that can absorb the risk. This is made possible by the contractor purchasing more equipment,
additional time and man power to the construction project. Risk avoidance is conducted through
evasion of risks through restructuring of the construction project. Risk acceptance is the process of
identification of a risk but not taking any action unless and until it occurs. The contract should set out
the finances for catering for the loss caused in case a foreseeable risk occurs during the construction
process.
Question 6.
What events give rise to a contract under invitation to tender?
Invitations to tender may be referred as public calls for tenders. The events leading to a contract under
invitation to tender are provided in the Acts respecting contracting by public bodies. 8 The public body
calls for tender application for supply, construction contract involving an expenditure and other
contracts determined by government regulation. The public call of tenders is made by publishing of an
electronic tendering system which is approved by the government. 9
A public body may then award the contract by mutual agreement. Contracts entered my mutual
agreement should be published electronically in conjunction with a notice of intention by the
government. The notice of intention should provide the name of the enterprise that the government
intends to contract with, the procurement requirements, the contract commencement date, the address
of the contractors and reasons for the government entering into the contract through mutual
agreement. The public bodies have an obligation of awarding the lowest bidder in the tender
applications.
If contract A arises, are owners and bidders obligated to always enter contract B?
The contract terms of contract A are that the tender is irrevocable during the acceptance period
provided for in the “request for tenders (RFT).” It is the obligation of both parties to enter into contract
B when the tender is accepted according to the terms in the RFT.
In event that contract A arises due to tender acceptance, the owners and bidders with or without
acceptance will be obligated to enter contract B. The only exception to entering of contract B would be
if the tender application is denied and also if the tender is revoked before the acceptance period
provided in the RFT. Otherwise, if contract A arises, there is an obligation to both the bidders and the
owners to enter into contract B. Contract A and B analysis was established in The Queen (Ont.) v. Ron
Engineering & Construction (Eastern) Ltd. ("Ron Engineering"). Contract A is usually the contract that is
entered between the bidder and the owner on submission of a compliant bid while contract B is the
contract for supply of good and services itself.
Would you change the principle and why?
I would change the principle. This is because contract B is an involuntary contract which is conditional on
contract A. Contract A is however not revocable during the RFT which goes against the contractual rules
of revocation of contracts. The condition enforcement of contract B upon success in contract A is in my
opinion against the contractual rules.
8 Sections 10 -12 of Acts respecting contracting by public bodies
9 ibid
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