Don't Let Notice Requirements In Your Construction Contracts Go Unnoticed

Co-authored by James De Melo, Student-at-Law

Notice as a Prerequisite to Claims under Construction Contracts

Construction projects will be impacted by COVID-19. Although you might not know exactly how your project will be affected yet, you should be aware that you will likely have to give notice in accordance with your construction contract in order to be able to pursue a claim for any impacts.

Notice provisions keep parties up to date on issues affecting a construction project. A notice provision achieves this by defining the specific timelines within which a party must provide notice of a potential claim. Compliance with notice provisions allows parties to assess what is happening on the project and respond with contemporaneously developed solutions as opposed to after-the-fact justifications and (costly) remedies. Ontario courts continue to uphold the importance and value of notice provisions and of protecting parties from defending against surprise after-the-fact claims.

Most contractual notice provisions contain three basic components: timelines for compliance, substantive requirements, and the form of notice. A failure to comply with the specific requirements of any one component may eliminate the claiming party's ability to succeed on a claim.1

The courts have generally treated strict compliance with each component of a notice provision as a requirement for bringing a claim in the construction context.2 Construction contracts often impose notice requirements on all parties. However, owners, contractors, and subcontractors may each be subject to different notice requirements depending on the language of the contract.

Despite the fact that there are limited exceptions and excuses that have allowed parties to escape the consequences of non-compliance with a notice period in the past,3 these situations are the exception rather than the rule. It is best to treat notice clauses as mandatory and ensure compliance at the time notice is required rather than trying to convince a court that an exception applies after the fact.

Giving Proper Notice: Complying with Timelines

The first component to consider in a notice provision is the timing to submit the notice. Contracts often stipulate a specific time in which a party intending to make a claim must submit its notice. These timelines are often fairly strict and require a party to act quickly once an event that may impact the project occurs.

In the event that a notice period does not prescribe a...