legal
COVID-19 and standard CCDC/CCA clauses
A pandemic may trigger force majeure clauses and stop work orders.
By Gerry Argento
Photo ©makibestphoto – stock.adobe.com
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t the time of this column’s writing on Mar. 30, 2020, Canada has reported 7,297 cases of COVID-19 (both presumed and confirmed). In a continued effort to ‘flatten the curve’ and slow the spread of the virus, our federal and provincial governments have introduced a series of emergency measures. So far, to varying degrees across Canada, these measures have included social distancing, limits on public gatherings, new highway checkpoints and the mandatory closures of all non-essential businesses. The pandemic’s impact on business cannot be overstated and the construction industry has not been spared. In particular, the adverse consequences on the availability of the industry’s workforce and supply chains will challenge project teams and hamper effective project delivery. In Quebec, for example, with the exception of emergency repairs or services required to ensure public safety, all construction sites were ordered temporarily closed. There have been calls across the country for other provinces to follow suit. In this uncertain and unprecedented context, many industry stakeholders are questioning whether COVID-19 could trigger any force majeure clauses provided in their contracts. This column will address such clauses found in the Canadian Construction Documents Committee’s
(CCDC’s) and the Canadian Construction Association’s (CCA’s) standard documents. Force majeure As it pertains to the construction industry specifically, the widely used CCDC-2 Stipulated Price Contract and corresponding CCA-1 Stipulated Price Subcontract do provide a force majeure clause in GC 6.5.3. This clause reads as follows (with italics indicating this author’s emphasis): 6.5.3 If the contractor is delayed in the performance of the work by: .1 labour disputes, strikes, lockouts (including lockouts decreed or recommended for its members by a recognized contractors’ association, of which the contractor is a member or to which the contractor is otherwise bound); .2 fire, unusual delay by common carriers or unavoidable casualties; .3 abnormally adverse weather conditions; or .4 any cause beyond the contractor’s control other than one resulting from a default or breach of contract by the contractor; May 2020
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Canadian Consulting Engineer
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2020-05-01 11:57 AM
