This article originally appeared in The Construction Economist. The Construction Economist is a publication of the Canadian Institute of Quantity Surveyors (CIQS) and can be found at http://www.ciqs.org/english/the-construction-economist.
Time at large is a legal concept from the United Kingdom. In essence, it is applied where the Court finds that a schedule has been so disrupted that the contractor cannot be held to any milestone or completion dates and delay damages are therefore not collectable.
Although it would be fair to say that said legal verbiage or an exact “Canadian” definition of the term has not been embraced by Canadian courts, the underlying principles have been considered and this article provides a brief overview of a few examples where time at large has been applied in Canada.
At common law, there is an implied term in each contract that a trade will perform its work within a reasonable time. What is a reasonable amount of time is a question of fact that would be dealt with on a case by case basis. Accordingly, where no schedule is included in the contract, time may be found to be at large in Canada from the beginning of the contract.
In that regard, the failure to agree on a schedule after the contract is entered into will not alleviate a party from its contractual obligations and the court will imply reasonable terms that are necessary for business efficacy, including finding that work was to be performed within a reasonable period of time.
Where a construction schedule is included in a tender package and/or contract and sets out the agreed upon time for a trade to complete its work, time may still be found to be at large as a result of the actions of an owner or its agents that delay a contractor’s work.
For example, in Sun Steel Fabricators Ltd., the project schedule called for the trade to complete the structural steel by a certain date, however, the trade did not commence installation until after the agreed upon date and did not complete its work until approximately five months after the scheduled completion date. In that case, the court found that there were no damages for delay as: the delay was caused by other trades, inclement weather, and construction safety issues; there was no proof of damages; and the trade completed its contractual obligations within a reasonable period of time.
Although a number of Canadian construction contracts, such as a CCDC2-2008 Contract , contain specific provisions that set out a process for extending the time to complete the work upon proper written notice without putting time at large, time may still be found to be at large where the contractual terms are not adhered to by the owner and/or consultant.
If a contractor fails to provide any notice of a delay claim or delay in accordance with the contractual terms, it may be prevented from obtaining an extension or a finding that time is at large.
Usually, such contracts require timely notice of a delay by the contractor, which permit the parties to deal with problems as they arise rather than arguing about them afterwards. Although a contractor may not know precisely what the monetary effect of an accumulation of delays may bring about, early notification of a contractor’s concerns will enable the contractor to be placed in a position to negotiate, and the court will not extend notice period deadlines on the basis that the final quantification of the length of the delay has to be completed at a later date.
Where no format of notice is specified in the contract, courts have held that substance of the notice is more important than its form.
Depending on the contractual terms, if a contractor provides proper notice and an agreement cannot be reached as to how long the extension should be, time may be found to be at large.
In that regard, where the construction contract gives either the owner or consultant the unilateral ability to recommend or determine what extension of time should be granted to a contractor, such provisions include a duty of good faith upon the owner and consultant to act in a fair and reasonable manner when extending the contract time.
For example, where an owner is given the unfettered ability to either grant or deny an extension and the court finds that the owner is at default, the court would most likely not permit the owner to unilaterally decide whether to extend the contract time and find time to be at large.
Similarly, if a consultant fails to act reasonably and fairly in granting or refusing an extension of time, time may also be found to be at large. In that regard, the test is not perfection, but whether the consultant’s finding is justifiable.
Although the term “time at large” is not readily used in Canadian cases, the principles are still applicable in modern Canadian construction law and may be used where:
1. The contract does not contain a schedule;
2. The schedule is frustrated by the owner or its agents and no provisions to extend the schedule are agreed to or contained in the contract; and/or
3. The contractual extension provisions are not applied in good faith by the owner or consultant.
Accordingly, consultants, contractors, and owners should review and ensure their contracts have delay provisions prior to tender and comply with said provisions throughout the project in order to avoid having completion dates and schedules struck by the court and time found to be at large.
These comments are of a general nature and not intended to provide legal advice as individual situations will differ and should be discussed with a lawyer.