Consultant Determinations: Ignore them at your own peril

In the world of Canadian Construction Documents Committee (CCDC) contracts, consultants do not just design and oversee, they decide. According to a 2018 Alberta court ruling, a consultant’s words are not just respected but also carry the force of expert evidence in legal disputes. That means if a consultant makes a determination on payment, deficiencies, or delays, and a party does not bring their own expert to challenge it, the Court might take the consultant’s opinion as gospel. For contractors, this is a serious shift; what used to be a point of frustration on-site is now a potential knockout in court.

What is a CCDC Contract?

A CCDC contract refers to one of several standard construction contract forms developed and maintained by the Canadian Construction Documents Committee. CCDC is a national joint committee that develops procedures, and reviews standard construction contracts, forms and guides. These contracts are widely used in the industry and work to ensure clarity, consistency, and fairness in agreements between owners, contractors, consultants, and other parties involved in a construction project.

Each CCDC contract typically consists of items such as agreements between owner and contractor, definitions that clarify the key terms used throughout the document, and general conditions that cover topics such as contract administration, scope, payment procedures, insurance requirements, and consultant authority.

But it does not end there. CCDC contracts are designed to be paired with project specific documents such as drawings, specifications, schedules, and supplementary conditions that tailor the standard form to the unique requirements of each project.

The Consultant’s Role in CCDC Contracts

Within the framework of CCDC agreements, the consultant plays a central role in planning, designing and overseeing the entire lifecycle of a project. Typically, they are an architect or engineer hired by the owner to provide continuous professional services. While the specific agreement between owner and consultant may alter the consultant’s responsibilities, those responsibilities are typically listed in Part 2 of the most commonly used CCDC contracts.

The consultant’s duties generally begin early in the project and may include tasks such as studies, design development, preparing construction documents, and coordinating with other professionals. During construction, the consultant often acts as the owner’s representative, administering the contract and ensuring the work complies with the design and applicable codes.

Taken together, the responsibilities entrusted to the consultant allow them to act as technical authority, contract interpreters, and project guardians. Their decisions on matters such as payment or approval of scope can have significant consequences for contractors. In recent legal decisions, courts have shown a willingness to defer to consultant determinations about contract disputes, which has resulted in an increase in the importance of consultant decisions made during the course of a project.

The Impact of Consultant Determinations in the Courts

In ASC (AB) Facility Inc v Man-Shield (Alta) Construction , ASC (AB) Facility Inc. (“ASC”) hired Man-Shield (Alta) Construction (“Man-Shield”) to build a retirement residence in Calgary under a CCDC-2 stipulated price contact. The contract appointed a consultant with authority to make decisions on matters such as payment certification, scope changes, and the valuation of work performed.

The conflict centered on two invoices submitted by Man-Shield, one before and one after termination of the contract. The consultant assessed the invoices and concluded that the work was incomplete or deficient, authorizing only partial payment. Man-Shield disagreed with the consultant’s assessments, arguing that once the contract was terminated, the consultant’s authority should be null, and filed a lien against the building which prompted ASC to file an application to remove the lien and required Man-Shield to prove the validity of its claim. The matter proceeded as a summary trial; a sped-up court process intended to resolve disputes based primarily on documentary evidence. Neither party provided viva voce evidence (live oral testimony evidence provided by a witness) during the hearing, but the trial judge was provided with affidavits, documentary evidence, and the consultant’s records to resolve the dispute.

The trial judge rejected Man-Shield’s view that the court should utilize its own assessment. She emphasized that the court’s lack of knowledge on the specific points at issue inhibited her from interfering with the consultant’s conclusions, and that the consultant had a unique degree of proximity to the project. This involvement gave the consultant far greater experience and factual knowledge than the court could acquire in a summary proceeding. The judge also underscored that the CCDC-2 form was intentionally designed to empower the consultant to act as a sort of neutral referee in disputes, and the contract showed evidence of both parties agreeing in advance to abide by the consultant’s decisions unless there was “a demonstrable and significant error, legal or factual.”

Effectively, the court held that consultant determinations under a CCDC contract can be accepted as reliable evidence in a summary application. Unless the contractor provides contrary expert evidence to challenge the consultant’s findings, the court can rely on the consultant’s determinations in a dispute without requiring to advance to a full trial. This ruling confirms the expert status of consultants in CCDC contracts, solidifying their role as more than just contract administrators but trusted decision makers whose opinion carry serious legal weight.

On appeal, in ASC (AB) Facility Inc v Man-Shield (Alta) Construction , Man-Shield attempted to overturn the trial judge's decision arguing that she erred her assignment of weight to the consultant’s findings, particularly regarding deficient work performed under cash allowances. Man-Shield argued that they should have been entitled to recover the cost of work regardless of deficiencies or other concerns. The appeal judge disagreed and held that the consultant’s determination should continue to be accorded deference, even after the termination of the contract.

The Court of Appeal emphasized that under the CCDC-2 standard form contract, the consultant is contractually empowered to make binding determinations on matters like the quality and value of work. As such, the consultant’s proximity to the project, their ongoing involvement, and their technical expertise gave their findings significant weight.

The appellate judges stressed that the logic underpinning the trial judgment was sound, the consultant was not just another witness but the design decision maker under the CCDC-2 contract. By design, the consultant’s authority was meant to provide efficiency, expertise, and neutrality in resolving issues such as payment and deficiencies. Unless a party could demonstrate a clear and significant factual or legal error or provide compelling expert evidence to the contrary, there was no reason for a court to second guess those determinations. This is the reason that contractors need to know that, unless they have expert opinion to the contrary, they ignore a consultant’s decision at their own peril.

Conclusion

The ASC (AB) Facility Inc. v Man-Shield (Alta) Construction decision sends a clear message: consultants under CCDC contracts (and many other construction contracts) are empowered by the contract to make expert determinations that will be binding on the parties until expert evidence is provided that would undermine the consultant’s determination. For contractors, it is important not to dismiss these determinations, and to consult with their own legal and subject matter experts if they want to challenge a significant determination made by the project consultant.

To learn more about your options when facing contract disputes, please contact the author, Russell Patterson at rpatterson@gfslaw.ca or (587) 349-8119.

Article co written by Shanice Nkathazo.

*You can find more information on CCDC contracts through the CCDC website.

**This article summarizes court findings.

***It is important to understand your contract fully; legal counsel is recommended. This article is not intended to constitute legal advice.