Foundations of Construction Law

Online /
Nov 30 - Dec 2, 2022 /
Course Code: 13-1120-ONL22

The confirmation of this course depends on early registration; Register early to avoid the postponement or cancellation of a course.
  • Overview
  • Syllabus
  • Instructor


Please note, This instructor-led course has specific dates and times:
This course is held online over 3 days on the following schedule (All times in Eastern Time Zone):

9:00 am to 5:00 pm Eastern (Will include the usual breaks)

After participating in this course, you will be able to:

  • Examine claims arising from construction
  • Discover in detail the roles and obligations of contractor/consultant/owner
  • Protect yourself in construction contracts
  • Recognize special risk and liability issues
  • Apply knowledge gained to tendering on construction projects
  • Determine the type of contract that best suits your needs

Today’s competitive and complex construction industry requires careful consideration in the formation of the construction contract. We all want the work, but are the contracts equitable? Are the specifications and timetable feasible? What is your liability exposure?

Properly prepared contractors, subcontractors, architects, engineers, and developers can avoid anticipated liability, reduce performance disputes and receive payment for work performed. In this course you focus on practical solutions for today’s construction problems. Relying on years of experience, the instructor will illustrate what you should look for in a contract, exposures to avoid, and ways to protect yourself should a dispute arise.

Actual case examples will be discussed explaining contract performance, how to resolve construction disputes, how to prepare for a litigation case, and the bidding process.

This course covers legal issues from the formation of the contract to the final payment and is designed to assist construction professionals and their lawyers in day to day business activities.

Course Outline

  • The Canadian legal system
  • Basic contract law
  • Types of construction contracts
  • Construction bidding and tendering
  • Construction claims
  • Disputes over cost and time
  • Allocation of responsibility for unknown risks
  • The nuclear option and quality of performance
  • Hidden risks and delay claims
  • Architects and engineers
  • Construction torts and insurance
  • Bonds and liens

Who Should Attend
Contractors • Subcontractors • Architects • Engineers • Owners • Developers • Suppliers • Lenders • Project Coordinators • Credit Managers • Liability Insurers • Brokers • Lawyers wanting to develop expertise in Construction Contract Law • Municipal, Provincial and Federal Agencies that engage Contractors for Public Contracts

More Information

Time: 9:00 AM - 5:00 PM Eastern Time

Please note: You can check other time zones here.


Day I

The Canadian Legal System

What is the legal system

  • Substantive law - rules to follow
  • The courts - a body to enforce the rules
  • Procedural law - hurdles to jump to get to court
  • Where do the legal rules of substantive law come from?
    • The government - statutes and regulations
    • The Constitution and Treaties and Trade Agreements
    • The courts: the common law: history, stare decisis and precedent
    • The people: local custom and trade practice
  • Branches of the law
  • Law and Equity
  • Public law and private law
    • The main private law domains: Property, Tort, and Contract
    • Contract law – the most relevant to business
      • R v Paradis and Farley
      • The two rules of contract law: (1) The Contract means what it says; (2) except when it doesn’t
      • General principles of judicial control over contract terms
      • Good faith

Basic Contract Law

  • Basic principles
  • What is a contract?
  • Enforceability
    • Legality
    • Parties
    • Evidence of intention to be legally bound
    • Agreement as to subject matter
    • Written versus verbal contracts
  • Enforcement - what does it mean?
    • Specific performance versus damages
    • Calculation of damages
    • Limitations on the recovery of damages
    • Suing for Breach of Contract
    • Alternative dispute resolution (“ADR”)

Types of Construction Contracts

  • The evolution of construction contracts
  • Allocation of Risk
  • Fixed price
  • Cost plus
  • Unit price
  • Construction management
  • Design/Build and EPC
  • P3
  • Integrated Project Delivery

Day II

Construction Bidding and Tendering - Legal and Practical Do’s and Don’ts

  • The tendering process
  • New rules governing the tendering process - Canada Free Trade Agreement, New West Partnership Trade Agreement, and others
  • Minimizing the risk of bid disputes
  • Bid evaluation; preventing ambiguities; technical evaluation (time, performance); and financial evaluation
  • New ways to resolve tendering disputes
    • Bid protest mechanisms
    • Judicial review
  • The relevance of common law contractual rules to bidding and tendering
  • The contractor’s obligations to the owner: the Ron Engineering revolution
  • Obligations of the owner to contractors: M.J.B. Enterprises, Martel Building and Double N Earth Movers
  • Exclusion of liability for owner’s breach of contract: Tercon v. British Columbia

Construction Claims Overview

  • How the courts deal with construction claims
  • Principles of interpretation
    • Express terms and implied terms
    • Ordinary meaning
    • Whole contract
    • Contra proferentum
    • Exclusion and limitation of liability clauses
    • Notice provisions

Following the Requirements of the Contract

  • The importance of complying with notice provisions
  • Invocation of dispute resolution requirements

Disputes over Cost - Changes and Extras

  • Payment provisions
  • Scope of work
  • Change or extra - does it matter?
  • Pricing changes
  • Enforceability of changes clauses

Allocation of Responsibility for Unknown Risks

  • Concealed or unknown conditions
  • Toxic or hazardous substances

Disputes over Time

  • The importance of Scheduling
  • Owner’s difficulties in enforcing timely performance
  • Owners’ delay claims against contractors
    • Enforceability of liquidated damages
  • Contractors’ delay claims against owners
  • Subcontractors’ delay claims

Force Majeure and Frustration of Contracts

  • The effect of outside events – e.g. a global pandemic – on contractual rights and obligations
  • A review of how construction contracts applied to the Covid-19 pandemic
  • Preparing for the next pandemic and the future less-certain business environment generally

The Nuclear Option - Termination Provisions

  • Perils and pitfalls of terminating the contract

Quality of Performance

  • Warranty provisions
    • Practical difficulties in enforcing warranties
    • Practical solutions - the owner’s inspection authority


Workshop - Case Study
The class will review a real fact scenario, to consider how a court interprets and enforces a construction contract

Bonds - Protection Against Contractor’s Non-performance

  • The parties - principal, surety, and obligee
    • The business of bonding
    • Bonding versus insurance
  • Types of bonds
    • Bid bonds
    • Performance bonds
    • Labour and material payment bonds

Governmental Regulation of Construction Payment

  • The new: prompt payment requirements and prompt resolution of payment disputes – adjudication
  • The old – construction/builder’s liens
    • The lien as a legal right
    • How liens work in theory: lien claimants’ rights and owners’ corresponding obligations
    • How liens work in practice: paradigm scenarios
    • Timing: determination of substantial performance
    • Other rights and obligations created by statute in some jurisdictions: trusts and the right to information

Construction Torts

  • What is tort law? A set of legal rights and obligations that judges developed through the common law
  • The 20th Century revolution in the expansion of tort law rights and obligations
  • Contractor’s obligations in tort law: Winnipeg Condominium Co. v. Bird Construction
  • Consultant’s Obligations to the Contractor: Edgeworth v. N.D. Lea


  • The purpose and nature of insurance
  • What does insurance cover?
  • What kind of insurance is available for construction projects?
    • Builder’s Risk
    • Commercial General Liability
    • Professional Liability: Errors and Omissions
  • The biggest issue: coverage for defective work
  • How to deal with insurance companies

Architects and Engineers

  • The consultant’s multiple responsibilities under the contract
  • The consultant - owner relationship
  • Consultant’s liability for breach of contract
    • Responsibility for design
    • Responsibility for construction cost
    • Responsibility for proper performance of the work
  • The consultant’s responsibility as interpreter of the contract - duty to act judicially

Questions and Answers and Feedback to Participants on Achievement of Learning Outcomes

Concluding Remarks and Final Adjournment


Michael MacKay, B.A., LL.B.

Michael MacKay practiced law in Toronto for over 21 years, the last 19 almost exclusively in the field of construction law, and the last 14 at his own firm. He was a member of the Ontario Bar Association’s Construction Law Section’s Executive Committee from 1993 to 2009, and for most of that time co-edited its newsletter “Nuts & Bolts”. He is a frequent contributor to the Construction Law Letter. For over 20 years, he has travelled all across Canada to talk on construction law topics – including a complete construction law course for EPIC.

The Engineering Institute of Canada AAA Approved    EPP Approved   

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Course Rating
4.4 out of 5

Overall rating of this course by its previous attendees!

Fee & Credits

$1995 + taxes

  • 2.1 Continuing Education Units (CEUs)
  • 21 Professional Development Hours (PDHs)
  • ECAA Annual Professional Development Points

Foundations of Construction Law   Online | Jun 26 - 28, 2023
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