Delayed but Not too Late: Standardizing Construction Delay Claim Methodology in Canada

Schedule delay in construction projects is a common occurrence resulting in extended duration and cost consequences for the project participants, which typically requires detailed and complex delay analysis. In fact, construction delay assessments in Canada tend to involve a variety of methodologies and approaches depending on the nature of the project and delay event.

There is no “made in Canada” approach to delay analysis nor any proscribed national standards or guidelines, but a question remains: should there be a more robust exchange of the appropriate methodology and required support for schedule delay claims? Consultants in Canada have generally adopted approaches developed in other jurisdictions, some of which are addressed below.

In the United Kingdom (UK), the Society of Construction Law’s Delay and Disruption Protocol (SCL Protocol) was published in 2002 and revised in 2017. It provides a principled framework for project management and delay analysis in the UK construction industry. The revised publication identifies actors that ought to be considered in selecting the most appropriate methodology for the particular circumstances and offers an overview of several delay methodologies in common use. Moreover, the SCL Protocol allowed the deletion of model contract clauses and amendment of the approach to concurrent delay, so as to reflect local case law developments.

In Australia, the SCL Protocol has been applied in addition to guidelines from the Australian Institute of Quantity Surveyors and the Royal Institute of Chartered Surveyors. Interestingly, in the 2019 decision of the Supreme Court of New South Wales in White Construction Pty Limited v. PBS Holding Pty Limited [2019] NSWSC 1166, the Court rejected the SCL Protocol methodologies the experts used and suggested a broad, common sense approach that focused on key facts and contemporaneous evidence. The experts, in this case, came to profoundly different conclusions by applying “as-planned vs. as-built windows analysis” and “collapsed as-built analysis”.

In the United States, considerable developments have been made in advancing the critical path method (CPM) of delay analysis. The AACE International Recommended Practice No. 29R-03: Forensic Schedule Analysis (AACE R29-03) embodies the unifying and basic technical principles and guidelines for schedule delay analysis methods, as per the CPM. In 2017, the American Society of Civil Engineers (ASCE) published standard guidelines for schedule delay analysis in accordance with the American National Standards Institute (ANSI) under the designation ANSI/ASCE/CI 67-17 Schedule Delay Analysis. It provides a framework for assessing delay responsibility and calculating damages. The guidelines are intended to reflect industry practice, but not to prescribe a particular methodology.

In Canada, consultants have opined on methodologies, and Canadian courts and tribunals have applied some of them, including time impact analysis, windows analysis and collapsed as-built analysis. Because many delay claims are resolved outside of court or in confidential arbitration, some uncertainty exists as to which approaches are most persuasive. Further, Canadian courts often emphasize a flexible approach to assessing delay claims (i.e., Schindler Elevator Corporation v. Walsh Construction Company of Canada [2021] ONSC 283). However, publication of guidelines and best practices specific to the national construction industry—when properly applied—may bring an element of predictability, accountability and discourse to delay claim dispute resolution in this jurisdiction, which many in the industry would welcome. 
 

Originally published in The Legal Industry Reviews, Canada, Edition No. 2, June 2023.