Simon Grégoire-Impact Cost Claims Related To Delays and To Acceleration

Impact Cost Claims Related to Delays and to Acceleration..., 2017 J. Can. C....
2017 J. Can. C. Construction Law. 73
Journal of the Canadian College of Construction Lawyers

2017
Simon Grégoire LL.M., FCIArb.
Copyright © 2017 by Thomson Reuters Canada Limited; Simon Grégoire LL.M., FCIArb.
Impact Cost Claims Related to Delays and to Acceleration of Work Under Quebec Construction Law
Editor's Note
This contribution to the 2017 Journal by our Fellow Simon Grégoire constitutes an in depth analysis of the current status of
judicial consideration of impact cost claims related to delays and acceleration under Quebec civil law. It also provides along
the way a discussion of the views of several authors which have dealt with the same or closely related topics over the past
few decades.
As a leading practitioner of construction law with a true understanding of the matter, Mr. Grégoire first provides a compendium
of relevant terms, some which may be, or may at one time have been considered, synonyms of the expression impact costs.
A portion of his analysis is dedicated to the three fundamental categories of construction contract costs, as they relate to impact
claims: direct costs, general worksite costs and head office costs. These three categories of costs, based upon his analysis of
the recent ruling by the Quebec Court of Appeal in Dawcolectric, constitute the only three categories of construction costs,
encompassing, in their full meaning, all potential construction related costs. He explains how impact costs do not under Quebec
civil law form a distinct category of costs; impact costs are composed of one and/or another of the categories forming part of
the construction contract. By way of example, he explains how general worksite costs can constitute impact costs and similarly
how “direct” costs can be impact costs.
The text also reviews a series of definitions of impact costs and provides comment, in light of the most recent teachings of
the Quebec Court of Appeal, notably in Dawcolectric, Kiewit and Birdair. The inherent, and indeed essential, difficulty, when
one considers impact costs, is to isolate their cause. We are reminded how the Courts in Quebec have repeatedly accepted this
principle, alleviating the burden of proof of the contractor in establishing a causal link between a specific event and the damages,
when it is simply not possible to establish such a link between one or more specific causes and additional costs. We are also
reminded how the definition offered by Stephen Revay in 1988 still holds true, as confirmed by recent court pronouncements:
“impact costs are often referred to as *74 the ripple effect, because they originate in one or more isolated problem and spread
unabated through a project like ripples across a pond.”
Prior to the conclusion, the section on Notices, Change Orders and Releases provides an excellent discussion of the stimulating
challenges that await contractors and their clients, practitioners of construction law and the courts when attempting to determine
the scope of application of releases signed by a contractor, with respect to specific changes in the works, when these specific
changes co-exist with impact costs. It also offers some useful insight as to how similar challenges have recently been resolved
in complex situations.
1. INTRODUCTION1
The price of a construction contract is composed of costs and profit. General practice divides these costs into three (3) categories:
direct, “indirect” (general worksite costs) and head office costs.
© 2021 Thomson Reuters. No claim to original U.S. Government Works. 1

Contracts almost always provide a price adjustment mechanism in the event that the work provider brings modifications to
the work.
Generally, contracts also allow the work provider to issue change orders that the contractor is bound to execute, although no
agreement has been reached in relation to the price or the delay of execution.2
Finally, contracts often grant the work provider the right to decide, in the event of a dispute, what constitutes a modification,
whether or not a delay arose and its impact upon the construction schedule, as well as the amount of additional compensation to
which the contractor is entitled. In the case of a disagreement, the contractor must fall back upon the various conflict resolution
mechanisms, namely negotiation, mediation, arbitration, and ultimately the courts, in order to obtain compensatory damages.
Certain recent judgments rendered by the Court of Appeal of Quebec have addressed the delicate and often complex issue
of damages related to delays and to the acceleration of construction work, namely the matters of Danny's Construction Co.
c. Birdair inc.,3 Construction Kiewit *75 Cie c. Hydro-Québec,4 Dawcolectric inc. c. Hydro-Québec5 and Consortium MR
Canada ltée c. Commission scolaire de Laval.6
The objective of this article is not to comment upon these judgments, but rather to seize the opportunity that they offer to revisit
the question of damages related to delays and to the acceleration of construction work. This question immediately raises the
notion of “costs” included in the bid (i.e., direct, “indirect” and head office costs), previously mentioned, but also raises the
notion of “impact costs” and the relationship between these types of costs. Those operating in the industry, their attorneys,
experts and judges alike have juggled for many years with these notions without ever truly having reached an agreement on
their meaning and scope.
The expression “impact costs” is without a doubt one of the most frequently used expressions in construction jargon; however,
evidently, it is not always understood in the same manner. The confusion that has reigned in this regard has been discussed
by authors of specialized literature and the Courts7 and results in good part from the panoply of synonyms that are given to
the concept: “interruption costs”, “loss of productivity”, “loss of performance and manpower”, “acceleration costs” and
“damages following delays”.8 This of course raises many questions. Do “impact costs” exist only where the work has been
delayed? If so, are “impact costs” necessarily “general worksite costs” related to the extension of the duration of the work?
Do “impact costs” form a separate category of costs? Are the terms “impact costs” and “loss of productivity” synonymous
as certain authors suggest?
The interest that these questions raise is not theoretical. It is practical.
For example, when the parties to a construction contract negotiate the value of a modification brought to the contract, they will
be concerned with the costs that immediately result from such modification, but also with the costs related to the impact of such
modification on the timetable and other work, as the case may be. However, the parties often do not *76 include these costs,
qualified as “impact costs”, in the price of change orders, for the simple reason that they are unable to evaluate such costs at
the specific time the change order is issued. This is very common, since the parties often do not reach an agreement as to what
the modification will cause in terms of execution delays and the impact upon other work.9 It regularly occurs that the parties
agree to exclude impact costs in a change order and to reserve their rights in relation thereto.10
This is where the definition of “impact costs” becomes crucial in determining specifically what the parties have agreed upon,
and what can be claimed thereafter. What do the impact costs include or exclude, namely in terms of direct and indirect costs?
This article proposes to retain one simple and straightforward vision of the situation in light of the Court of Appeal's leading
judgment rendered in Dawcolectric: whether it is at the time of the bid or at the end of the work, construction contracts only

entail three categories of costs: direct costs, general worksite costs (costs qualified as “indirect”) and head office costs. As we
shall see, this terminology emanates from the accounting reality of preparing a bid, and the attribution of costs when operating
a worksite and a construction business.
The expression “impact costs” is of another nature. It relates to the legal terminology that assists the judge in analyzing causality
and liability. It does not create a separate category of costs: It underlies the impossibility to attribute a specific primary cause to
the additional costs incurred. Impact costs can be comprised of direct costs, general worksite costs and head office costs. Their
indirect cause is often qualified as disruption, delays, acceleration measures, or a combination of these causes.
Throughout this article, we will also address the concepts of “loss of productivity”, “financing costs” and “costs for the
preparation of a claim”. Before entering into the substance of these notions, it will be relevant to briefly revisit the various
categories of delays and the burden of proof that the contractor must satisfy in a claim for damages resulting from delays or
the acceleration of work.
*77 2. SUMMARY OVERVIEW OF LIABILITY RESULTING FROM DELAYS
Case law and commentary acknowledge the concepts of “compensable delays”, “excusable delays” and “unjustified delays”.11
Only compensable delays afford contractors both the right to extend execution delays and the right to financial compensation
for the additional costs resulting therefrom. Excusable delays only afford a right to extend execution delays.
This article only addresses what is referred to as “compensable delays”, and provides a brief overview of the notion of burden of
proof. It does not contemplate preliminary questions relating to the contractor's or work provider's responsibility for delays, nor
the requisite causal link between delays and the damages claimed. In short, this article contemplates contractor claims related
to delays and to acceleration of work as though liability were established in evidence. As we will see further on, in order to
define the notion of impact costs, it will nevertheless be necessary to briefly review the notions of liability and causality.
2.1 The Burden of Proof and its Reversal
Contractors are contractually bound to complete the work by the date specified in the contract or by any other date modified
by way of change order. If a contractor does not fulfil this obligation and the work provider isn't complacent, the contractor
will be required to support the additional costs resulting from its default. A contractor must therefore establish that it did not
cause the delay.
[OUR TRANSLATION] “The burden of proof
1. The rule
[ ... ]
A party that alleges a fact must establish its existence [ ... ].
A burden of proof is incumbent upon each of the parties in accordance with each party's position in the dispute. As
per the second paragraph of article 265 C.C.P., “During the evidence *78 stage, the party on which the burden

of proof lies examines its witnesses first; the other party then submits its evidence”. The hearing before the Court
therefore generally begins with the Plaintiff's evidence, which is to say the party claiming the acknowledgement
and execution of a right.
[ ... ]
2. The reversal of the burden of proof
During the hearing, after the Plaintiff has completed its evidence, the burden of proof shifts and lies thereafter
upon the shoulders of the contesting party which must establish the nullity, modification or extinction of the right
invoked by the opposing party in accordance with relevant substantive law, and based upon facts it must establish
in evidence. The defendant or respondent, which is also subject to a burden of proof (art. 2803 C.C.Q.), therefore
presents evidence to oppose that of the Plaintiff [ ... ]“12
This reversal of the burden of proof occurs after the contractor has established that delays arose for which it was not responsible.
Indeed, the contractor must first establish on a balance of probabilities that the delays are attributable to the owner:
[OUR TRANSLATION] 99. I would borrow, by analogy, the words of Justice Duranleau in the Redbrooke judgment
in which he analyzed the extent of the burden of proof, “It is enough for Cape to establish and prove that they were
considerably delayed by the owner and that the balance of probabilities is such that if they had not completed their
work prior to the date that it was actually completed, it was due to the owner” [Redbrooke Estate Ltd c. E.G.M.
Cape & Co. (1956) Ltd, [1974] J.Q. no 3 au para 179 (C.S.)]. Falmec had to prove the cause of the delays and
the fact that these delays were not attributable to it. The trial judge declared himself satisfied with the evidence
that was adduced and nothing allows for this conclusion to be set aside.
100. The sub-contractor is entitled to financial compensation for the additional costs resulting from the
modification itself, but also for those resulting from the extension of delays.13
*79 If the work provider considers that part of the delay is attributable to the contractor, it is the work provider that
must establish this in evidence. If the work provider succeeds in adducing such evidence, whether it be delays qualified as
“coincidental”14 or “dominant”, at the end of the day the judge must apportion the liability of each party.15
2.2 Compensable Delays and Acceleration
So what are “compensable delays”? In terms of liability, these are delays for which one party is legally responsible. In situations
in which damages arise, in cases of delays for which the work provider is responsible, these damages include, inter alia, the
costs related to the contractor continuing the execution of the work beyond the initially stipulated termination date, which gives
rise to many additional costs. These include costs resulting from maintaining its personnel and equipment on the construction
site, adjustments in the cost of manpower, etc.16

But in the case of such damages, as reference is made to compensable “delays”, are they limited to the additional costs that
result from the extension of the duration of the work?
Why ask the question? The contractor may be compelled, despite the delay, to respect the date for the completion of the
work. In such a case, it must deploy acceleration measures. There is no reason that these costs, which result from acceleration
measures, should not be treated in the same manner as those resulting from the extension of the work. Case law and authors
of commentary agree that in the case of compensable delays for which the contractor is entitled to an extension of time and to
financial compensation, the contractor is entitled to be compensated for acceleration costs if the acceleration was demanded by
the owner, or if it *80 was put in place further to the owner's refusal to grant an adequate extension to complete the work.17 In
short, additional costs resulting from the extension of the timetable or from the acceleration of work form two sides of the same
coin. In the case of a “compensable delay”, the costs incurred are compensable whether they are the result of the extension of
the work or of the efforts deployed for acceleration.18
2.3 Disruption
Disruption, also referred to as “interruption”, is a notion related to delays and acceleration. The Society of Construction Law
of the United Kingdom defines disruption as follows:
“Disturbance, hindrance or interruption of a Contractor's normal work progress, resulting in lower efficiency
or lower productivity than would otherwise be achieved. Disruption does not necessarily result in a Delay to
Progress or Delay to Completion.”19
A disruption is therefore not equivalent to delays or acceleration in every case (if for example the disruption doesn't affect any
critical activities), although it can lead to them. However, the expression “claim for disruption” is used when it results from
a fault of the owner that neither causes delays nor requires acceleration. For example, the modification of the sequence of the
work and congestion on the worksite can disrupt the work without resulting in delays. Damages therefore generally take the
form of a loss of productivity, calculated when possible by comparing the productivity attained on an unaffected portion of the
work with the disrupted work.20
3. DELAYS AND ACCELERATION: AN INVENTORY OF DAMAGE-RELATED JARGON
3.1 The Three (3) Categories of Construction Contract Costs
As mentioned above, the price of a construction contract is composed of costs and profit. General practice divides these costs
into three (3) categories: *81 direct, general worksite costs (costs qualified as “indirect”) and head office costs. This is so
from the outset through to the end of the work, and damages are comprised of one or another of these categories of costs.
3.1.1 Direct costs
These are the costs that vary directly in relation to the work performed, which is to say manpower, material and the equipment
directly related to a given task.21 A contractor must excavate 1000 m3 of rock. A change order requires the excavation of 100
m3 more. The manpower, the material and the equipment required for excavating the additional 100 m3 are direct costs.
3.1.2 General worksite costs

These are the costs incurred by the contractor for the performance of the work in its entirety.22 Some of these costs fluctuate
in relation to the value of the work (personnel and supervision), others in relation to their duration (rental of worksite trailers),
and others in relation to one or the other. Authors Gosselin and Cimon designate these costs as “indirect worksite costs” while
specifying that they are generally referred to as “general worksite costs”.23 The latter expression is used in this article, as it
circumvents the (false) debate in relation to the notion of direct and indirect damages24 that has been raised from time to time
by certain owners who have argued that the “indirect worksite costs” cannot be legally compensated as they are “indirect”
damages which cannot be claimed under Quebec Civil Law.
3.1.3 Head office costs
In this case too, Authors Gosselin and Cimon use a different expression: “General costs and profits”.25 We prefer the expression
“Head office costs and profits” so as not to confuse these costs with the general worksite costs and to emphasize the fact that
these are expenses related to the activities of the business' head office, such as accounting, purchasing, *82 and those related
to operations and general management.26 A portion of the expenses related to the head office's activities is attributed to each
project in which the contractor is involved. The notion of profit is coupled with that of head office costs, as profits relate to
the business as a whole.
When a project is extended without a proportional increase in total revenues, the project's net revenues fall under the necessary
level and a part of the head office costs remain “unattributed”. In the case of compensable delays, this unattributed portion of
the head office costs can constitute a valid claim with respect to the damages suffered.27 With respect to the notion of profit,
whereas a percentage of the damages granted is sometimes awarded without question, in other cases, evidence of a loss of
business opportunity is required for such a claim to be granted.28
These categories emanate from the accounting reality facing contractors when preparing their bids. From their very nature,
these categories are related to calculations made on various levels and, in the case of general worksite costs, head office costs
and profit, these are thereafter generally attributed pursuant to a percentage of various unit or fixed prices to ensure that the
contractor obtains remuneration that covers the entirety of its costs.
When the owner requires additional work, these same categories of costs are generally used, but in this case the difficulty of
calculating an exact price is noteworthy. It is relatively easy to determine direct costs in terms of man power, material and
equipment, but it is without a doubt more delicate to determine the related general worksite costs, head office costs and profit.
This is why these costs are often added to the direct costs of the additional work on the basis of a percentage generally varying
between 10% and 20%. Note that this does not broach the notion of impact costs, which we will address later on.
3.1.4 Only three (3) categories of costs exist
We must mention, to complicate matters somewhat, that other damage claims raised in construction matters such as “financing
costs” and “costs *83 for preparing a claim”29 may lead one to think that other categories of costs exist beyond the three (3)
already mentioned. However, there are no additional categories of costs, only the three (3) discussed hereinabove.
Authors Gosselin and Cimon categorize financing costs as “indirect worksite costs”.30 However, it could very well be possible
that certain contractors charge the construction work's financing costs along with their head office costs. Whatever the case
may be, the additional costs resulting from delays and acceleration measures will cause the financing costs to increase, but in
no case will they form a new category of costs.

With respect to the costs for preparing a claim, these are additional costs falling within the category of general worksite
costs or head office costs (depending upon the allocation of the personnel having participated in the preparation of the claim)
resulting from the additional tasks that were not provided for in the contract, nor compensated in the context of change orders.
In Dawcolectric, the Court of Appeal acknowledged that these costs could, in certain circumstances, constitute compensable
damages.31
In their treatise, Authors Gosselin and Cimon write, “[OUR TRANSLATION] The costs that a contractor may incur due to
modifications brought to the contract can be grouped into four categories: direct costs, indirect worksite costs, general costs
and loss of profits, as well as impact costs”32 which the Authors address thereafter in four (4) separate sections.
The presentation of the costs in four (4) separate sections could lead one to believe that impact costs constitute a new category
of costs with respect to the three first categories that form part of the bid and that these categories are mutually exclusive from
one another.
If a cost is qualified as an “indirect worksite cost”, is it therefore excluded from being an “impact” cost, and vice-versa? Are
these categories closed and mutually exclusive? The answer is “no”.
The distinction is important, because the contractual framework that binds the parties in a construction agreement (the contract,
the change orders, the exemptions, the agreements reached outside of the change orders, industry practices, letters providing
reservations) can use these *84 words and expressions to reserve the rights of one party or another with respect to these
categories of costs. If for example a party has reserved its rights to claim “impact costs” but the expression “impact costs”
must be construed as being distinct from direct costs, general worksite costs, administration costs, and profit, what remains
for the contractor to claim?
As the Court of Appeal has acknowledged in the matter of Dawcolectric by overturning the trial judgment in this regard, and
for the reasons discussed herein, impact costs do not form a distinct category of costs. Impact costs are composed of one
and/or another of the categories forming part of the construction contract. By way of example, general worksite costs can very
well be impact costs. Even “direct” costs can be impact costs.
3.2 Impact Costs: Moving Toward a Definition
A great confusion has reigned among authors with respect to the definition of impact costs. As for case law, very few judgments
present meaningful discussions of this expression33 and judges often simply endorse the qualification of damages by the parties
without discussion.34 As for the rare judgments that attempt to define the notion, they employ definitions from commentary
which, as mentioned above, are quite confused.35 In this article, we shall present an overview of the different existing definitions
and explain thereafter what should be retained and why.
3.2.1 Definitions related to the meaning of the word “impact”
The word impact namely means “effect”, “influence”.36 The word can be defined as, “the force of impression of one thing
on another”.37
Several practitioners and judges have given a broad meaning to the expression “impact costs” as a result of its primary
meaning: “[OUR TRANSLATION] the ensemble of consequences of an operative event, a modification, an interference, a lack
of availability or other unforeseeable *85 condition on the contractor's activities on the worksite.”38 In a similar regard, in
the matter of Agropur, Justice St-Pierre provides two definitions, the first of which is just as broad: “[OUR TRANSLATION]
“additional costs associated with the repercussions, in terms of additional costs, that certain breaches on the part of the work

provider can have on the project with respect to its obligations, or, one or many modifications over the course of the project.”39
Under this definition, an impact cost could be the result of any violation of the owner's obligations. Defined this broadly, one
can see that “impact costs” are not from a separate category of costs.
However, a more restrictive conception of impact costs also exists in realtion to its common definition. The most frequently
cited definition in specialized literature in Quebec is that proposed by Stephen Revay in an article cited frequently since its
publication in 1987: “Impact costs are the increased costs of one or several related construction activities, in excess of what
those costs would have been but for an incident, action or omission relating to a separate item of work.”40
Jean Hudon also proposes a similar definition “[OUR TRANSLATION] extra costs of an operation due to a problem encountered
elsewhere”.41
One finds among these definitions the idea that impact costs result from the “effect” or the “influence” that an incident has had,
beyond the immediate effect on a given activity, upon other activities that were not “immediately” affected by the incident.
Revay continues, stating that, “Impact costs are often referred to as the ripple effect, because they originate in one or more
isolated problem and spread unabated through a project like ripples across a pond”.42
This ripple effect notion also relates to what some have called “a negative definition” as to what impact costs are: it is not the
intrinsic costs related to the modifications brought to the work, but rather, the effect from a cost perspective that the modifications
have had upon the rest of the project.43 Mtre Stephen Shenke defines the expression as “[OUR *86 TRANSLATION] additional
costs caused by one or several events encountered on a worksite in comparison with the direct costs incurred further to a
specific event.”44 This definition warrants prudence to not create more confusion with the notion of direct and indirect damages.
However, one must acknowledge that those operating in the industry often oppose the “direct costs” (of a modification) with
the “impact costs” to define the second and, in this regard, Mtre Shenke's definition is faithful to the jargon of those working
in the industry.
We would emphasize that this restrictive definition in relation to its usual meaning does not clearly distinguish between the
costs resulting from one sole event or, conversely, from many events. It doesn't reveal anything with respect to the analysis of
liability that the judge must undertake when ruling upon a claim for impact costs.
3.2.2 Definitions related to the number of events having caused additional costs/Definitions related to the specific nature
of the analysis of causality
Authors Gosselin and Cimon write, “[OUR TRANSLATION] The expression ‘Impact costs' is used to designate the additional
costs that one cannot exclusively relate to a given modification”.45
This definition is practically identical to that proposed by Mtre Guy Sarault: “additional costs that are impossible to exclusively
associate to a specific modification”.46
Mtres Gosselin, Cimon and Sarault refers to the often cited definition of impact costs given by S.G. Revay which states, as seen
previously, that “Impact costs are often referred to as the ripple effect, because they originate in one or more isolated problem
and spread unabated through a project like ripples across a pond”.
Although they express it slightly differently, all these learned authors suggest that impact costs result from at least two events
because if additional costs result from one sole event, let's say for example, modification “A”, then these costs are more likely
to be circumscribed at the time that the modification occurs and the question of “impact” would not have arisen at the time.

*87 True, Revay's definition does not specifically requires at least two problems or modifications for there to be impact
costs. However, it suggests that impact costs result from at least two causes, which could be either two modifications or one
modification, coupled with the effect that the modification has had. Viewed in this light, according to Revay's definition, a first
incident “A” creates the consequence “B”, and it is the consequence paired with the incident that engenders the impact “C”.
In conclusion, authors agree that impact costs are the consequence of two or more events.
3.2.3 Definitions relating to the nature of incidents that have caused additional costs
Certain authors define impact costs by relating them globally to the nature of the incident having caused them, which is to say
a delay, a disruption or acceleration. Brunies and Primiani note that there was a time where “impact costs” were considered in
the United States as acceleration costs, whereas in Europe, they were considered to be damages further to delays.47 Today, it is
certain that “impact costs” can just as well be damages further to delays, acceleration or disruption of the work.48 Mtre John
Murphy defines impact costs as costs resulting from circumstances of delays, acceleration or worksite interruption.49
Foreign specialized literature further reveals that in the United States, in England and in Australia, the term “impact costs” is
not a designated term. Doug Jones uses it and defines it as an additional payment resulting from the effect of an event delaying
the construction work. He offers as a synonym the expression “prolongation costs”.50 In these three countries, classification is
based upon the nature of the incident: claims for delays, claims for acceleration and others for disruption.51
It is therefore apparent that an intimate relationship exists between impact costs and the damages related to delays and to the
acceleration of the work. But is this necessarily the same concept? One does not find, in the simple identification of the general
cause of the additional costs, the *88 idea of the ripple effect or the imprecise notion of causality that are found in the previous
definitions.
Very interestingly, British and Australian authors identify what one could qualify as sub-categories of claims, which is to say
claims for delays, acceleration and disruption. It is what they call “global claims” which they define as follows:
• “one in which the Contractor seeks compensation for a group of Employer Risk Events but does not or cannot
demonstrate a direct link between the loss incurred and the individual Employer Risk Events”;52
• “defined as a claim where “the causal connection between the matters complained of and their consequences,
whether in terms of money or time, are not fully spelt out”.53
In a “global claim”, one finds the same idea expressed by Mtres Gosselin, Cimon and Sarault related to an imprecise causal link.
As a result of its inclusion in specialized literature regarding claims for delays, acceleration and disruption, it can be understood
that in “global claims” the entirety of the primary cause of the costs results from what could be qualified as an indirect cause--
a delay, acceleration or an interruption--in relation to which one must establish causality in a general manner.
3.2.4 Definition related to the nature of damages

Finally, in the judgment rendered in Falmec, the judge's definition is as follows: “[OUR TRANSLATION] Impact costs are
those which were not foreseen”.54 The judge continues thereafter with a second and more developed definition which makes
reference to the imprecision of causality. The definition of impact costs as a result of their unforeseeable nature seems of little
use, since it is far too broad, but it has the merit of emphasizing the notion of impact costs being very often related to their
unforeseeable nature.
This judgment echoes Stephen Revay's definition of impact costs and confirms that impact costs are costs that are difficult to
quantify at the time of the incidents at their origin.
*89 3.2.5 Definition proposed by the author in 201255
All of the definitions presented hereinabove contain a common idea: one of “indirect” causality. This relates to the difficulty
in foreseeing and quantifying impact costs. The association consistently made between impact costs and costs for delays
and acceleration reveals that the latter are the most frequent examples of impact costs, delays or acceleration becoming the
“intermediary” cause.
However, one cannot simply define impact costs as delay or acceleration costs for the same reason that the definition proposed
by Revay relating to the common meaning of the word “impact” remains unsatisfying: these definitions do not distinguish
between additional costs caused by one or several identifiable events, such that the specific cause cannot be identified.
This distinction is important in the sense that a need exists to define the term in order to render it useful for judicial purposes. If
a delay or an acceleration results from a unique and identifiable cause, in our opinion, this would fall outside of the qualification
of impact costs, as it relates to the primary cause. For example, one would speak of extras due to unforeseen soil conditions or
a specific change order rather than an impact cost related to a delay caused by the unforeseen condition or the change order.
It is only when one cannot associate the costs of a modification or a specific event that one should speak of impact costs. At
this time, the delay becomes a sort of indirect, intermediary cause of the damages, the primary causes remaining the individual
events that have occurred throughout the project and having caused the delay. The analysis of liability is made globally for
all of the events.
The expression “impact costs” under Quebec law therefore corresponds to the British and Austrailian legal notion of “global
claim”. Claims for delays and acceleration form the best examples of these types of claims, but nothing excludes the possibility
of imagining other examples of imprecise causes.
In 2012, we proposed the following definition of impact costs:
Impact costs are extrinsic to a given modification or event. They result from a modification and its repercussions
or from several modifications or events without it being possible to isolate the *90 specific primary cause.
Impact costs are therefore related to an indirect cause, which often takes the form of a delay, a disruption or
acceleration. These costs generally include direct costs, general worksite costs, head office costs and profit. These
are reimbursed as damages in order to integrally compensate the contractor for the prejudice resulting from
disruptions to the work, compensable delays or acceleration measures deployed to mitigate them.
As we shall see, the overlap between indirect and primary causes is a source of particular difficulty in the analysis of damages,
but that should not in any circumstance constitute a reason to not indemnify the contractor that is found in a situation in which
the complexity of the worksite and the modifications are such that a specific causal link cannot be established. Certainly, if

we must encourage contractors to attribute specific causes to additional costs incurred when it is possible, we cannot expect
them to do so when it is not.
The Courts in Quebec have moreover accepted this principle on many occasions, alleviating the burden of proof of the causal
link in proceedings claiming impact costs.56
3.2.6 Use of the term “loss of productivity”
Mtres Gosselin and Cimon write, “[OUR TRANSLATION] Generally, impact costs are measured in terms of loss of
productivity”.57 Others use the terms “impact costs” and “loss of productivity”58 interchangably, assuming that impact costs
are necessarily caused by a loss of productivity.
This is not the case. The purpose of certain modifications to the work could be to postpone the completion of a phase of the
work to a milder time of year after the stipulated end date when it will be easier to perform the work, resulting in a slight gain
in productivity for this activity. It still remains that these modifications will have caused a compensable *91 delay and the
additional general worksite costs would be impact costs in this case.
In summary, it is not necessary for the contractor, whose work is subject to a compensable delay, to have suffered a loss of
productivity in order to be able to claim “impact costs”.
If it is not necessary to have a loss of productivity for there to be compensable impact costs, is a loss of productivity necessarily
an impact cost? The answer is no, emphasizing that these are two different notions.
One sole event, which will have no repercussions on the other activities of a project, can result in a loss of productivity. For
example, a given task must now be performed in limiting the number of decibels, which precludes the use of certain high-
performance tools. The work takes 10% more time. The timetable will not be affected if the affected activity is not on the critical
path. The 10% of additional time will be the sole effect of the modification. The modification will cause an intrinsic loss of
productivity for a specific activity, though it will give rise to no impact costs.
In conclusion, impact costs will occasionally include a claim for damages entitled “loss of productivity”. Other times, a loss
of productivity will not result in impact costs, where it is related to a specific cause. As is the case with impact costs, losses of
productivity can include direct and indirect costs, which implies worksite manpower and personnel, and additional supervision
for completing the same amount of work.
3.2.7 Definition retained by the Court of Appeal
At trial, in the matter of Dawcolectric, the judge had dismissed several of the contractor's claims on the basis that Dawcolectric
had only reserved its right to claim “impact costs”. As the trial judge concluded that the claims in question were composed of
“general worksite costs”, which in his mind could not be the same as “impact costs”, he ruled that Daw-colectric had not made
the appropriate reservations for these claims.
On appeal, the Court of Appeal ruled that the trial judge had erred in considering impact costs and indirect costs as mutually
exclusive categories and in qualifying certain claims as indirect costs associated with impact costs.59
*92 On this subject, the Court makes reference to authors Gosselin and Cimon, as well as to the now Superior Court judge,
Christian J. Brossard, noting that the Courts acknowledge the contractor's right to seek reimbursement for impact costs if they
result from delays or breaches on the part of the work provider. This said, the Court concludes that “[OUR TRANSLATION]
Impact costs are direct or indirect costs, though they cannot be associated to a specific cause”. The Court adds that these impact

costs are, in a variable price contract such as the one at issue in this matter, generally borne by the contractor, unless the latter
manages to establish a breach of the work provider's contractual or extra-contractual obligations.
In this case, the Court considered that the claims related to the increase in technical and supervising personnel during the
stipulated contractual period and the extension period, in addition to the increase in general worksite costs during the stipulated
contractual period, were impact costs and not, as the trial judge had ruled, indirect costs having formed the object of releases.60
Indeed, “[OUR TRANSLATION] [These] claims indeed target indirect costs, but they are also impact costs since they cannot
be directly related to the modifications brought to the work and considering that they were caused by the problems which arose
on the worksite.”61
In 2014, in the matter of Kiewit, in accordance with the principles set forth in the matter of Dawcolectric rendered on the same
day, the Court of Appeal concluded that the general loss of productivity related to the delays caused by the work provider, as
well as the additional costs incurred by the contractor when acceleration measures were imposed, were impact costs “[OUR
TRANSLATION] due to the difficulty in associating them with a specific cause”.62
3.3 Conclusion: The Use of Two Different Terminologies Makes Overlap Possible
The definition of impact costs as a cause of action referring to a specific analysis of liability clearly supports our affirmation
at the outset of this article to the effect that impact costs can just as well be direct costs, general worksite costs, head office
costs and profits or all three at the same time.
*93 As noted by Mtres Gosselin and Cimon, direct costs can be incurred during an extension caused by compensable delays63
which means that certain additional direct costs will constitute impact costs.
By way of example, consider exterior work that was supposed to be completed in October, but for various reasons, will be
performed in December. If hypothetically the work takes 25% more time to complete in December than it would have in October
due to the cold, 25% of the direct hours, which is to say the hours spent by the labourers executing the work, will be impact
costs. Indeed, if it weren't for the various incidents that led to the contractor performing this work in December, the 25% increase
in hours would not have occurred. These are impact costs comprised of “direct” costs. One can also imagine that the work in
winter will require the construction of a shelter, which would also constitute another direct “impact” cost.
As for general worksite costs (or “indirect” worksite costs), the work that was supposed to be performed in October but needed
to be completed in December resulted in pushing the stipulated end date from November 30 to December 31, also delaying the
demobilization of the personnel working at the worksite office. Theoretically, the costs of maintaining personnel and installations
constitute impact costs. These are impact costs composed of general worksite costs.
At the first day of a worksite as at the very end of the work, the costs that the contractor must incur to complete a construction
project form part of one of the three (3) following categories: direct costs, general costs, and head office costs. Impact costs, like
losses of productivity, are comprised of direct costs, general worksite costs, and additional head office costs, and such impact
costs can exist whether the work has been delayed or accelerated, with or without losses of productivity.
4. THE PARTICULARITIES OF GRANTING AND CALCULATING DAMAGES IN CLAIMS FOR IMPACT

COSTS RESULTING FROM DELAYS OR ACCELERATION
The definition of impact costs retained by the Court of Appeal is to the effect that such costs require a specific analysis of
liability. In a claim of this nature, the judge must therefore complete a global analysis. Prior to doing so, the judge must, however,
conclude whether the claim in question is indeed a claim for impact costs. The judge must therefore *94 conclude that it was
impossible for the contractor to establish specific causality between certain damages claimed and the alleged faults. If the judge

considers that certain damages relate to specific events, he must isolate these damages from the rest of the claim and examine
the owner's liability in relation thereto separately. As indicated by the Supreme Court in the matter of Corpex, the conclusion
is factual and cannot be overturned on appeal except in the case of a palpable and overriding error.64
Once this step has been completed, the judge must first examine the specific events or actions which are alleged to be at the origin
of the delay in determining whether the work provider or the contractor is responsible. Thereafter, the judge must determine the
extent to which the delay is attributable to each party. The causal link must then be established between the damages claimed
and the delay in a general manner. This is the global analysis retained by the Court of Appeal:
[OUR TRANSLATION] “If the orders suspending the work must be added to it, one can easily conceive the
disorganization that the respondent would have experienced in performing work of this scale. The causes of the
delays are not only juxtaposed, but influence each other reciprocally. In these circumstances, it is not easy to
balance the number of days of the delays that are attributable to one cause or another. [ ... ] In this matter, the
circumstances as a whole take precedence and, on a balance of probabilities, allow to attribute the cause of the
delays to the appellant.”65
“It would be exorbitant to require the sub-contractor to establish the responsibility of each party for additional
work performed and to evaluate the delay which was caused in each case.66
In this regard, the Court of Appeal in Birdair validated the use by a subcontractor of the modified total cost method in order
to quantify the claim for delays and acceleration of work. The Court first noted that the use of this method is not encouraged
in general, since it makes it difficult to compartmentalize costs which were not related to modifications or to unforeseeable
conditions and which result, rather, from difficulties specific to the business. Nevertheless, the Court considered that due to the
very specific situation of this case where the acceleration measures *95 were solely caused by the work provider's actions, and
due to the absence of viable alternatives for the sub-contractor to evaluate damages, it was appropriate to use this methodology.67
With these considerations in mind, the following section presents a discussion on the particularities that arise in terms of granting
and calculating damages in an impact cost claim.
4.1 Notices, Change Orders and Releases
A few preliminary remarks are warranted in relation to the obstacles that parties must often affront in claims for impact costs
resulting from compensable delays further to the issuance of change orders executed throughout the performance of the contract,
which partially cover the additional costs incurred by the contractor. In this situation, the work provider often argues that the
contractor has already received compensation for the change orders that were negotiated and paid throughout the completion
of the work, and it is possible that this is the case. The argument is sometimes pushed even further when the work provider
maintains that the contractor granted a release for all the impact costs resulting from the modifications resolved by change orders.
These arguments arise from the overlap between the primary causes of the damages claimed, for example, the numerous
modifications to the work, and the indirect cause, for example the delay. The fundamental principles which must be borne in
mind when facing arguments of this nature are those relating to the integral reparation of injury and unjust enrichment.
A change order will sometimes specify that it aims to complete a settlement. As such, a change order that settles not only the
direct costs of a modification, but the costs related to the delays caused by the modification must be understood as releasing the
work provider from the costs related to the delay identified in the specific modification. Considering the unforeseeable nature

of impact costs, it seems very unlikely that a contractor would accept such terms, and this can cause heated debates as to which
of the costs claimed are related to the modification in the case where only a few change orders explicitly cover such costs.
Where the contract provides that the stipulated price for the additional work will be adjusted by a percentage that can vary
between 10% and 20% depending on the contract, it can become difficult to separate the *96 general worksite costs and the
head office costs claimed as impact costs from those which may have been included in the adjustment. On the other hand, it
is important to emphasize that although cross-referencing could give rise to arguments pertaining to double indemnification,
inviting the Court to revise the amount claimed as impact costs granted under the change orders as a percentage, it cannot give
rise to an argument based upon a settlement or release unless the specific language of the contract allows for such an argument.
In Dawcolectric, the Court of Appeal acknowledged that the 15% adjustment provided in the Hydro-Québec contract would
have been the only adjustment to which the contractor would have been entitled had it been able to perform the additional work
with the anticipated workforce and within the original schedule. This, however, was not the case in this matter, as the duration
of the work had doubled. Accordingly, the 15% adjustment paid to Dawcolectric through the change orders did not constitute
double indemnification with respect to the general worksite costs and head office costs claimed by Dawcolectric as impact costs.
Returning to the issue of a change order constituting a renunciation to claim impact costs, “[OUR TRANSLATION] a transaction
including a release [ ... ] is equivalent to a renunciation to a right. However, any renunciation to a right must be clear
and unequivocal.”68 This has been reiterated on many occasions in the context of proceedings instituted by construction
contractors,69 namely in the matter of Corpex in which the Supreme Court indicated that one cannot presume that a change
order contains a renunciation on the part of the contractor, even where the latter has failed to reserve its rights.70 This principle
also emanates from the very nature of construction contracts, which are onerous.71
With these notions in mind, a change order should be interpreted with a view to determining the parties' common intentions and
not the subjective intentions of one contracting party.72 In accordance with article 1426 C.C.Q., one must take into consideration
the context and circumstances surrounding negotiations, industry practices, logic and likelihood, and the behavior of the parties,
namely in the context of *97 negotiations following the completion of the work and in the context of the litigation itself.73
It often occurs that the contractor will have sent the work provider letters to reserve its rights. Considering the confusion that
persists in relation to the terms used to designate impact costs, it is relevant to examine not only the terms employed, but also
the context to determine their meaning. The expression, “costs related to delays” should be understood as covering impact
costs for example. The letters and notices will form part of the context surrounding the negotiation of the change orders in the
sense of 1426 C.C.Q.74
Indeed, article 1431 C.C.Q. states that the clauses of a contract include only what it appears that the parties intended to include.
Letters of this nature can therefore circumscribe the object of the discussions at the time the change orders are negotiated by
specifying that the impacts do not form part of the proposed price. No renunciation can have been made in relation to claims
which have not yet arisen.
In case law, letters of this nature have also led to the conclusion that the contractor had not renounced to its right to claim impact
costs. In this regard, in the Redbrooke Estates judgment, the Superior Court refused to conclude that a settlement had been
reached with respect to the costs incurred further to delays since, “[OUR TRANSLATION] [One] must only read the extensive
correspondence that has been filed to realize and acknowledge that Cape was waiting for the suspended matters to be settled
at a later time”.75
We must reiterate that when the parties to a contract decide to exclude impact costs from a change order or when a party reserves
its rights to compensation at a later time for “impact costs”, this exclusion or reservation also relates to direct costs, general

worksite costs and head office costs resulting from one or several modifications and the repercussions thereof which could not
be quantified at the time the change order was executed.
Even in the absence of letters or notices, the very nature of impact costs is such that they are often unforeseeable or unquantifiable
until the work is completed. Authors of commentary acknowledge this fact: it is generally possible to predict that a large number
of modifications to the *98 work will result in additional costs, but it is impossible to say which specific costs will arise and
the amount of same.76
This is what the Supreme Court emphasized in the matter of Corpex, citing the trial judge:
“It would clearly be impossible to foresee with any accuracy what additional costs would be incurred by delay
of other work as a result of undertaking the extras for which a price was submitted and approved, and it would
appear that if any attempt had been made to include such consequential costs in the tenders this would have been
rejected as being too hypothetical and incapable of determination until the work was actually done.”77
In the matter of Birdair, Justice Léger confirmed this point on appeal,78 providing a good example of concrete reasons which
explain the impossibility to determine the extent of the consequences attributable to the problems encountered before the
completion of the work:
• “[OUR TRANSLATION] There were problems during practically the whole work period;
• Many of these problems arose at the same time, creating the need to maintain an accelerated pace;
• The problems continued well beyond the termination of the contract by BIRDAIR on October 30, 1998;
• DCCI could not know beforehand when the required material would be delivered by BIRDAIR;
• DCCI could neither presume nor know if BIRDAIR would actually grant it an extension of the delay to complete
its subcontracted work [ ... ];
• DCCI could not know, in September and October, what tasks would need to be performed in winter conditions.”79
It is therefore normal that impact costs do not form the object of a claim until the work is completed. This is also how the parties
had agreed to proceed in the matter of Vermont Construction, in which the architect, Mr. Cyr, testified that it was evident that
the direct costs paid for each modification did not cover the costs related to the delays.80

*99 Accordingly, In Dawcolectric, the Court of Appeal considered that the parties' silence with respect to the near majority
of the change orders regarding impact costs resulting from delays in the execution of the work implied that the negotiations on
this matter had been pushed back to a later time.81
In our opinion, this reasoning is sound inasmuch as it is unlikely to interpret a contract as containing a release from a claim
which, at the time of the execution of the agreement, was unforeseeable or particularly difficult to quantify.82
Finally, the judge must evaluate the parties' actions after the fact, namely during the period of negotiation which may have
followed the execution of the change orders and the litigation itself. For example, if the contractor filed a claim and the change
orders were executed thereafter, one cannot interpret this change order as releasing the work provider, in whole or in part,
from the claim without express reference thereto. Justice Duranleau states the following in relation to a similar argument in
the matter of Redbrooke:
“[OUR TRANSLATION] at that time, Redbrooke knew [ ... ] that Cape already had a claim for damages resulting
from delays, which it had acknowledged barely a few weeks before on March 8, 1965 [ ... ] if Redbrooke had
wanted to settle the matter of the delays relating to the modifications covered by this amount at the same time, it
would have certainly mentioned it and if it did not, it is because the question remained on hold.”83
In cases where impact costs alone are claimed and the parties negotiate over the course of many months before judicial
proceedings are instituted, the sudden introduction of arguments relating to releases should raise skepticism. The contradiction or
incoherence of arguments of this nature presented in defense can also contribute to the understanding of how a party interpreted
the change orders.
For these reasons, it is highly improbable that a change order release will implicitly cover a claim for impact costs. Though
supposing that a doubt *100 could potentially persist, article 1432 C.C.Q. provides that in case of doubt the contract is
interpreted in favour of the person who contracted the obligation, or the adherent. Construction contracts are often contracts of
adhesion and change orders are often prepared with boilerplate forms. In these circumstances, the work provider must suffer
the consequences of deficient drafting.84 The interpretation should favour the contractor.85
For these same reasons, since it is the nature of impact costs to not be known until the completion of the work, we consider that
the burden of proof falls upon the work provider to establish that a claim for payment of an amount beyond the amounts paid
through change orders could constitute double indemnification.
At the end of the day, we must reiterate that the question of determining whether a contractor having executed change orders for
the payment of modifications to the work is entitled to additional indemnification for impact costs incurred should be examined
with the principle of integral reparation in mind.
4.2 Apportionment of Risk Provisions Related to Delays
It is also possible, as in the matter of Tanaka, that a contract will require change orders to include costs related to the extension
of the timetable, which is to say a portion of the impact costs.86
These clauses can raise complex problems due to the unforeseeable nature and difficulty in qualifying the impact costs before
the completion of the work. How are the parties able to evaluate this beforehand in an equitable manner? It is interesting to
note that in the matter of Tanaka, even though the contract had provided that the prices negotiated by way of change order
included the “costs inherent to the extended delay for execution”, the same article also specified that the work provider, “may,

in specific cases, pay the supplier certain worksite costs incurred due to specific conditions considering the specific nature of
the change order.”87 Faced with similar clauses, the Courts have concluded that the indemnification cannot be dependent upon
the work provider's good intentions.88
*101 In a case where the contract is a contract of adhesion, it could therefore be possible for the contractor to establish that such
a clause subjects it to a disadvantage in an excessive and unreasonable manner in the sense of article 1437 C.C.Q. Ideally, the
contractor will have reserved its rights to claim, beyond the change orders, other costs related to the extension of the timetable.
5. CONCLUSION
Over the course of the past few decades, the notion of “impact costs” has entered into the construction vocabulary, first in
specialized literature, then before the Courts.
Construction projects and the contracts in relation thereto often involve considerable amounts of money. It follows that the
damages that may be claimed and granted in construction litigation are often significant.
The definition of the notion of “impact costs” retained by the Court of Appeal seems to have contributed in a favourable manner
to the development of the state of the law governing construction contracts.
In concluding, we would note that the legitimate desire that drives us all to compartmentalize matters for a better understanding
should not forestall the principles of fundamental justice that afford a creditor the right to the integral reparation of the prejudice
it has suffered.89 Conversely, a creditor should not benefit from unjust enrichment, which would be the case if it were to receive
double or excessive indemnification for its prejudice. This is why the boilerplate contracts used by the American Government,
the Federal Canadian Government, the British Institute of Civil Engineers and the Fédération internationale des ingénieurs-
conseils establish the contractor's right to claim impact costs by way of express stipulation and providing compensation for “all
costs reasonably incurred”. The objective is to grant the contractor sufficient funds to place it in the financial situation in which
it would have been were it not for the interruptions or compensable delays at the origin of the impact costs, which is further
compliant with the legal notions of damages acknowledged in the majority of these countries.90
Footnotes
1 The author wishes to thank Mtre James Woods and Mtre Anaïs Bussières McNicoll for their invaluable collaboration in relation to
updating an article on the same subject published in 2012 by the author and Mtre Valérie Scott.
2 The contract at issue in the matter of Tanaka is a good example: Développement Tanaka inc. c. Québec (Corp. d'hébergement), 2011
QCCA 1278 at p. 3 [Tanaka--pavillon de néphrologie].
3 2013 QCCA 580 [Birdair].
4 2014 QCCA 947 [Kiewit].
5 2014 QCCA 948 [Dawcolectric].
6 Consortium MR Canada ltée c. Commission scolaire de Laval, 2015 QCCA 598 [Consortium].
7 André Simard, “Ledommage résultant des coûts d'impacts”, Super Conférence de la construction, November 27-28 2002, p. 1;
Industries Falmec inc. c. Société de Cogénération de St-Félicien, société en commandite/St-Félicien Cogeneration Ltd. Partnership,
2003 CarswellQue 1657, AZ-50173032 (C.S.) at para. 123, varied in part 2005 QCCA 441, varied 2005 CarswellQue 14048 (C.A.)
[Falmec, trial judgment and Falmec appeal judgment].

8 Stephen G. Revay, “Calculating Impact Costs” (1988) 27 C.L.R. 239, p. 240; Regina Brunies and Michael Primiani, “Les réclamations
pour retards, accélération et impact--leur quantification et prévention”, Super Conférence de la construction, November 14 and 15,
1994, p. 34.
9 Corpex (1977) Inc. v. Canada, [1982] 2 S.C.R. 643 at pp. 662, 671 and 672, varied 1983 Carswell-Nat 537F, 1983 CarswellNat 537
(S.C.C.) [Corpex].
10 For example, it is what the parties had agreed in the matter of Vermont Construction v. Canada, [1971] A.C.F. No. 300 at paras. 40-46,
appeal dismissed in [1972] A.C.F. No. 502 [Vermont Construction, trial judgment and Vermont Construction, appeal judgment].
11 Ian Gosselin and Pierre Cimon, “La responsabilité du propriétaire”, in Olivier Kott and Claudine Roy, La construction au Québec:
perspectives juridiques (Montréal: Wilson et Lafleur ltée, 1998) at 341, pp. 393 et seq. For designating “retards compensables” and
“retards injustifiés”, other experts use the terms “retards indemnisables” and “retards non-excusables”: Brunies and Primiani, supra
note 8, p. 2. In American Law, the same terms are used: Robert F. Cushman et al, Proving and Pricing Construction Claims, New
York, Aspen Publishers, 2001, pp. 33-37.
12 Pierre Tessier and Monique Dupuis, “La preuve devant le tribunal civil”, in École du Barreau, Collection de droit 2016-2017, vol. 2
“Preuve et procédure” (Cowansville:Édition Yvon Blais, 2016), p. 198.
13 Falmec, appeal judgment, supra note 7 at paras. 99-100.
14 Certain authors use the expression “retards coexistants”: Stephen G. Revay, “Le calcul des dommages en matière de construction”, le
Bulletin WDR, vol. 10 no 1, janvier 1991; This article was cited by Brunies and Primiani, supra note 8, p. 10. Others use the expression
“retards concourants”: Bruce Reynolds et Stephen G. Revay, “Retards concourants: une modeste proposition”, le Bulletin Revay,
vol. 20, no. 2, June 2001. Only a few Latin expressions are missing to complete the list ... This example, among others, illustrates
that the choice of different words to designate the same reality has contributed to certain confusion in the area of quantification of
damages related to delays and to acceleration in construction projects.
15 If a certain hesitation has existed with respect to the Courts' power to apportion liability resulting from delays in construction projects
(Gosselin and Cimon, supra note 11, pp. 398-399), it has been done in several recent judgments (Refer to, inter alia, Dawcolectric,
supra note 5; Ed Brunet & associés inc. c. La Pêche (Municipalité), 2004 CarswellQue 10115, AZ-50285375 (C.S.) [Ed Brunet].)
For a revision of this question in the common law provinces, refer to the above-referenced article by Reynolds and Revay, ibid.
16 For examples of delays that were not considered to be compensable delays, in that they were not the work provider's responsibility,
refer to Développement des éclusiers inc. c. Ciment Québec inc., 2013 QCCS 6307 at para. 96 and Projets VG inc. c. Groupe Lessard
inc., 2014 QCCS 5018.
17 Gosselin and Cimon, supra, note 11, p. 400; Birdair, supra, note 3, paras. 139-141; Kiewit, supra, note 4, para. 294 and 337.
18 Bernard Quinn and Olivier Kott, “Les dommages: comment les réclamer et comment les contester”, Super conférence de la
construction, November 14-15, 1994, pp. 28-29.
19 Society of Construction Law, “The Society of Construction LawDelay and Disruption Protocol”, p. 9, October 2002, online: < http://
www.scl.org.uk>.
20 Society of Construction Law, ibid., pp. 31-32.
21 Guy Sarault, Les réclamations de l'entrepreneur en construction québécoise, Cowansville (Qc), Yvon Blais, 2011, p. 237; Jean Hudon,
“Le calcul des dommages”, Conférence Insight, October 30, 1987, pp. 18-23.
22 Hudon, ibid., pp. 23-25.
23 Gosselin and Cimon, supra note 11, p. 402.
24 Quinn and Kott, supra note 18, p. 5.
25 Gosselin and Cimon, supra note 11, pp. 403-404.

26 Sarault, supra note 21, pp. 238-243.

27 Brunies and Primiani, supra note 8, p. 30.
28 This was why justice Judson, dissident, would have refused to award damages for head office costs and profit in the matter of
Shore & Horwitz Construction Co. v. Franki of Canada Ltd., [1964] S.C.R. 589 at p. 593. See also Agropur coopérative c. Cegerco
Constructeur inc., 2005 CarswellQue 8078, AZ-50332383 (C.S.) at paras. 2234-2236 [Agropur].
29 Sarault, supra note 21, pp. 252-255.
30 Gosselin et Cimon, supra note 11, p. 403.
31 Dawcolectric, supra note 5, para. 202.
33 We have identified fewer than fifteen judgments that mention the expression “impact costs”.
34 See for example: Constructions du St-Laurent Ltée c. Aluminerie Alouette Inc., [2003] R.J.Q. 2663 (C.A.), leave to appeal refused
2004 CarswellQue 657, 2004 CarswellQue 658 (S.C.C.); Ed Brunet, supra note 15; 9042-2592 Québec inc. (EntreprisesMCCOinc.)
c. Roger Rivest &Fils inc., 2006QCCQ9196; Altus Construction inc. c. Québec (Sociétéimmobilie‘re), 2008 CarswellQue 149, EYB
2008-128593 (C.S.).
35 Dawcolectric, supra note 5; Agropur, supra note 28; Falmec, trial judgment, supra note 7.
36 Multi dictionnaire de la langue franc? aise, 2004.
37
Merriam-Webster's, 10th edition, 2000.
38 Simard, supra note 7, p. 9.
39 Agropur, supra note 28, para. 2174.
40 Revay, supra note 8, p. 239. See for example Guy Sarault, “Le calcul des dommages que peut réclamer l'entrepreneur en construction”,
Super Conférence de la construction, November 2011, slide no. 18 [Sarault, Super Conférence], citing the original definition of
Stephen G. Revay. Also cited by Pierre, Sicotte, “Réclamations dans le domaine de la construction”, Journée de conférences sur La
Construction & Le Nouveau Code civil de Guy & Gilbert, 13 mai 1993, p. 41.
41 Hudon, supra note 21, p. 5.
42 Revay, supra note 8, p. 239.
43 Brunies and Primiani, supra note 8, pp. 34, 35.
44 Brunies and Primiani, supra note 8, pp. 34, 35.
45 Gosselin and Cimon, supra note 11, p. 405. Sarault, Super Conférence, supra note 40.
46 Sarault, supra note 21, p. 244; see also Agropur, supra note 28, para. 1276.
47 Brunies and Primiani, supra note 8, p. 34.
49 John Murphy, “Révision de la jurisprudence en matière de réclamation”, Superconférence sur la construction, November 28 and 29,
2001, para. 8.
50 Doug Jones, “Principles and Methods of Calculation of Impact Damages: The Australian Position” (2008) 42 Journal of the Canadian
College of Construction Lawyers 39, p. 39, n.1.

51 Cushman, supra note 11; Hudson's Building and Engineering Contracts, (London: Sweet & Maxwell, 2010); Society of Construction
Law, supra note 19; Jones, ibid.
52 Society of Construction Law, supra note 19, p. 56; Jones, ibid., p. 59.
53 Hudson's Building and Engineering Contracts, supra note 51, p. 968.
54 Falmec, supra note 7, para. 120.
55 In 2012, a first article on this subject, co-authored by the author and Mtre Valérie Scott, proposed a definition of impact costs.
56 Redbrooke Estate Ltd. c. E.G.M. Cape & Co. (1956) Ltd. (1974), AZ-50424205 (C.S. Que.) at pp. 45-46, confirmed on appeal
(unpublished judgment rendered on April 17, 1980), pp. 42-43 [Redbrooke, trial judgment and Redbrooke, appeal judgment]; Falmec,
appeal judgment, supra note 7, para. 56, 98-99, 105; Falmec, trial judgment, supra note 7, para. 140; Birdair, supra note 3, para.
504-511, 647-651.
58 Brunies and Primiani, supra note 8, p. 34; Ms. Brunies and Mr. Primiani do not name the authors who conflate these notions, but
we have also remarked that these terms are used interchangeably by certain members of the construction industry. See also Sarault,
Super Conférence, supra note 40, slide no. 18. For case law, refer to Dawcolectric, supra note 5 and Falmec, trial judgment, supra
note 7, paras. 117-122 and 171.
59 Dawcolectric, supra note 5.
60 Ibid., para. 69.
61 Ibid., para. 72.
62 Kiewit, supra note 4, para. 294 and 337.
64 Corpex, supra note 9, pp. 671-672.
65 Redbrooke, appeal judgment, supra note 56, pp. 42-43.
66 Falmec, appeal judgment, supra note 7, para. 98.
67 Ibid., paras. 206-219.
68 Sylvere c. Hazan, 2006 CarswellQue 4262, EYB 2006-105781 (C.A.) at para. 57.
69 Vermont Construction trial judgment, supra note 10, para. 22; Falmec, appeal judgment, supra note 7, para. 58 and 83.
70 Corpex, supra note 9, p. 671.
71 Vincent Karim, Contrats d'entreprise, contrat de prestation de services et l'hypothe‘que légale, 3e éd., (Montréal: Wilson & Lafleur,
2015), pp. 326-327.
72 1425 C.C.Q.; Didier Lluelles et Benoît Moore, Droit des obligations, 2e éd. (Montré al: Éditions Thémis, 2012), p. 876.
73 Refer to Lluelles and Moore, ibid., pp. 883-891.
74 Lluelles and Moore, ibid., p. 886.
75 Redbrooke, trial judgment, supra note 56, p. 40; Redbrooke, appeal judgment, supra note 56, pp. 87-88; also refer to Vermont
Construction trial judgment, supra note 10, para. 21-26 and 40-46.
76 Simard, supra note 7, pp. 18-19; Sarault, supra note 21, pp. 29-30, 40-41, 230;

77 Corpex, supra note 9, p. 672.

78 Birdair (appeal), supra, note 3, para. 139.
79 Birdair (trial judgment), supra, note 3, paras. 507, 647-8.
80 Vermont Construction, trial judgment, supra note 10, paras. 40-46.
81 Dawcolectric, supra note 5, para. 61.
82 Skyline Holdings Inc. c. Scarves & Allied Arts Inc., 2000 CarswellQue 1635, REJB 2000-19795 (C.A.) at para. 16 (also refer to paras.
26, 30-31); 147310 Canada Inc. c. Trust Général du Canada, 1996 CarswellQue 66, EYB 1996-71361 (C.A.) at para. 12. Conversley,
the indirect costs that were foreseeable at the time of the signature of the change order were considered to be included in said change
order, refer to Consortium, supra, note 6, paras. 21-25, 27, 39 and 40.
83 Redbrooke, trial judgment, supra note 56, p. 45.
84 Lluelles and Moore, supra note 72, p. 906; Cie d'assurances ING du Canada c. Montréal (Ville), 2009 QCCS 1711, paras. 32-33 and
47, affirmed 2011 QCCA 417, at para. 23 and 36.
85 Karim, supra note 71, p. 310.
86 Tanaka--pavillon de néphrologie, supra note 2, para. 20 and 32.
87 Tanaka--pavillon de néphrologie, supra note 2, cited at para. 7.
88 Corpex, supra note 9, p. 669; Constructions du St-Laurent Ltée c. Aluminerie Alouette Inc., [2003] R.J.Q. 2663 (C.A.) at para. 52,
leave to appeal refused 2004 CarswellQue 657, 2004 CarswellQue 658 (S.C.C.).
89 Simard, supra note 7, pp. 7, 9.
90 Brunies and Primiani, supra note 8, pp. 36-38.
2017 JCCCL 73
End of Document © 2021 Thomson Reuters. No claim to original U.S. Government

Works.

Simon Grégoire-Impact Cost Claims Related To Delays and To Acceleration

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Simon Grégoire-Impact Cost Claims Related To Delays and To Acceleration

Uploaded by

Copyright:

Available Formats

Impact Cost Claims Related to Delays and to Acceleration..., 2017 J. Can. C....

2017 J. Can. C. Construction Law. 73

Journal of the Canadian College of Construction Lawyers

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 1

The interest that these questions raise is not theoretical. It is practical.

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 2

*77 2. SUMMARY OVERVIEW OF LIABILITY RESULTING FROM DELAYS

2.1 The Burden of Proof and its Reversal

[OUR TRANSLATION] “The burden of proof

A party that alleges a fact must establish its existence [ ... ].

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 3

2. The reversal of the burden of proof

2.2 Compensable Delays and Acceleration

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 4

3. DELAYS AND ACCELERATION: AN INVENTORY OF DAMAGE-RELATED JARGON

3.1 The Three (3) Categories of Construction Contract Costs

3.1.1 Direct costs

3.1.2 General worksite costs

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 5

3.1.3 Head office costs

3.1.4 Only three (3) categories of costs exist

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 6

3.2 Impact Costs: Moving Toward a Definition

3.2.1 Definitions related to the meaning of the word “impact”

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 7

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 8

3.2.4 Definition related to the nature of damages

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 9

*89 3.2.5 Definition proposed by the author in 201255

In 2012, we proposed the following definition of impact costs:

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 10

3.2.6 Use of the term “loss of productivity”

3.2.7 Definition retained by the Court of Appeal

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 11

4. THE PARTICULARITIES OF GRANTING AND CALCULATING DAMAGES IN CLAIMS FOR IMPACT

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 12

4.1 Notices, Change Orders and Releases

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 13

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 14

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 15

4.2 Apportionment of Risk Provisions Related to Delays

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 16

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 17

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 18

26 Sarault, supra note 21, pp. 238-243.

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 19

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 20

77 Corpex, supra note 9, p. 672.

End of Document © 2021 Thomson Reuters. No claim to original U.S. Government

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 21

You might also like