Time at Large in Canada

Journal of the Canadian College of Construction Lawyers2011

*71 Time at Large in Canada

Christopher J. O'Connor, Q.C., Dirk Laudan

Copyright © 2011 by Thomson Reuters Canada Limited; Christopher J. O'Connor, Q.C., DirkLaudan

Editor's Note

When may a tribunal sweep away contractual completion dates (and with them anyliquidated damages provisions for late completion) and allow the contractor a reasonabletime to perform a construction contract? This is the provocative question discussed in thefollowing article. The authors note that to date there has not been a comprehensive legalanalysis of this question in Canada. They address and move beyond the well-known“prevention principle” [FN1] and discuss four particular aspects of the problem: interfer-ence, failure to stipulate a new date in response to a contractor's request for an extensionof time, waiver of completion, and failure to adequately stipulate an applicable comple-tion date.

O'Connor and Laudan examine the problem from the perspective of liquidated dam-ages clauses, providing a useful additional note to the preceding article by Michael De-mers and from the perspective of concurrent delay, contributing to the body of know-ledge published in our Journal in that regard. The authors also include an excellent bibli-ography on the subject, with a list of additional cases.

The time is out of joint--O cursèd spite, That ever I was born to set it right! [FN2]

1. TIME AT LARGE--IN CANADA YOU SAY?

“Time at large” means that there is no specific time for completion of a contract. Timemay be at large from the beginning, or it may be put at large by events. Where time is put atlarge, it is usually the result of actions by the owner or its agent that delay the contractor'swork. The principles around time at large have not been commented upon much in Canada butthey have been considered, in one form or another, by Canadian courts. In our view, “time atlarge” constitutes a practical and useful tool in the analysis and interpretation of constructiondelay disputes in Canada, and is therefore worth further study.

Let us begin with a real example for illustration. In 1980 a construction contractor,*72Hawl-Mac Construction Ltd., agreed to build a chlorination system and related works inCampbell River, British Columbia. The contract stipulated that the work was to be completedby December 4, 1981. The contractor failed to complete on time. During the course of thework, after the likelihood of delay became evident, Hawl-Mac wrote to the consultant/contract

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administrator and asked for an extension of time on the basis that its delay had been caused bythe engineer's dealings on some technical and environmental regulatory issues. Despite send-ing this letter, the case suggests that for reasons unknown, it did not actually come to the con-sultant's attention until January 1982, after the actual completion of the contract work. Theconsultant then purported to approve retroactively an extension of 38 days for the delay, afterthe original completion date, which as of that point Hawl-Mac had not met. The Districtsought liquidated damages from Hawl-Mac from the new date.

The Court ruled that the District was not permitted to collect liquidated damages from thenew completion date, or at all. The Court held that the engineer was required to establish anew completion date within a reasonable time after receiving a request for an extension oftime and, in any event, before the new completion date passed. It was essential for the con-tractor to know the new date of completion to be able to take steps to accelerate, if required, tomeet it. Failing to provide that date within a reasonable time had the effect of preventing thecontractor from completing the work in time. The new date was invalid and time was there-fore “at large”. No liquidated damages could be claimed. [FN3]

The obligation to complete a contract by a fixed date is placed “at large” when the fixedcompletion date is lost by an intervening event not of the contractor's making and therefore re-placed with an obligation on the part of the contractor to complete its work within a reason-able time. As in the Hawl-Mac case, when time is put at large, liquidated damages terms arenecessarily rendered inoperative, not as a punishment of the owner for its interference of thecontractor's work, [FN4] but as a logical result of there being no fixed completion date. Li-quidated damages must run from a specific date and where there is no specific date, theysimply cannot be calculated and therefore cannot be claimed. There are other consequences totime being at large, in particular the impact on the owner's ability to enforce its schedule, theimpact on damages claims, and the impact of a contractor delay claim.

Although there has been no comprehensive legal analysis of when time may be put atlarge, the circumstances identified by courts to date where time may be put at large in a con-struction contract include the following:

(a) interference-- where the owner or the contract administrator/consultant interferewith or prevent the contractor's ability to complete its work;

(b) failure to stipulate a new date in response to a contractor's request for a time ex-tension-- where, for whatever reason, the owner or the consultant has failed to establish anew completion date properly under the provisions of the contract, or the contract ma-chinery has otherwise broken*73 down to prevent a proper completion date from beingidentified following a contractor's request for a time extension;

(c) waiver-- where the owner has waived completion by the completion date orwhere the parties have agreed that the completion date does not apply; and

(d) no completion date-- where there was no completion date stipulated in the con-tract. [FN5]

The idea that time for completion may be put at large by the actions of the owner has beenapplied in the common law provinces of Canada [FN6] and there seems little doubt that “timeat large” is part of the Canadian common law of contract. The purpose of this article is to in-



troduce how this principle has been applied in Canada and to begin to outline its uses in theanalysis of Canadian construction disputes. It is hoped that further analysis and debate will re-fine the principle so that it may become a useful tool in assessing delay claims by owners andcontractors.

2. INTERFERENCE AND THE PREVENTION PRINCIPLE

Where an owner impedes a contractor from meeting the completion date, the com-pletion date is suspended, time becomes at large and is replaced *74 with an obligationto complete within a reasonable time. -- Holme v. Guppy (1838) [FN7]

The concept of time being put at large from the actions of the owner is an application ofthe “prevention principle” in contract law, the essence of which is that the person to whom anobligation is owed cannot insist upon the performance of that obligation if he or she has pre-vented the other party from performing it. [FN8] This principle, also known as the duty ofcontractual cooperation, [FN9] was articulated in the following way by Bull J.A. [FN10] ofthe B.C. Court of Appeal in the 1966 decision Perini Pacific Ltd. v. Greater Vancouver Sew-erage & Drainage District: [FN11]

Considering, then, the fact of failure of the appellant [contractor] to complete con-struction of the project by January 10, 1963, it becomes necessary to consider its liabilityin the light of the effect thereon of the acts or breaches of contract of the respondent[owner] which claims recompense for that failure. Since the earliest times it has beenclear that a party to a contract is exonerated from the performance of a contract whenthat performance is prevented or rendered impossible by the wrongful act of the othercontracting party [citing Holme v. Guppy and other authorities].

Bull J.A. further quoted from the English case Dodd v. Churton, [1897] 1 Q.B. 562 (Eng.C.A.) (which followed Holme v. Guppy):

Where a party to a contract agrees to do a thing within a certain time, the other partymust not prevent him from doing it. This is a general principle, and is not confined tobuilding contracts. [For example] the building owner is not allowed to insist upon thepenalty for delay if, by ordering extra, he has prevented the builder from completing thework by a specified time. [FN12]In the context of a construction contract, the prevention principle is closely associated

with the owner's obligation to facilitate and not impair contract completion by the contractor.[FN13] Acts of prevention are not limited to breaches of terms of the construction contract(express or implied) by the owner. An owner may prevent timely completion of the contractby the contractor by taking an action that is permitted by the contract. [FN14] In such a case,the owner might not be in breach of the construction contract but the owner is required to givethe contractor additional time to complete and to take into account the act of prevention. Suchacts of prevention, which do not amount to breaching the terms of the contract, might include*75 ordering extra work, [FN15] failure to provide timely access to the site, failure to providea complete and proper design, significant design changes, or late provision of materials.[FN16]



The principle may therefore be modified by express terms of a contract, in particular bypermitting the owner to extend the time for completion of the contract and thereby negatingthe preventative effect of the owner-caused delay: the owner's act is not preventing the com-pletion of the contract within time if the schedule has been modified to accommodate thatdelay. That being said, the principle is likely to overcome boilerplate exclusions of all repres-entations and warranties or conditions not expressly stated in the construction contract.[FN17]

Most construction contracts in use today contain a mechanism for calculating the exten-sion of time to which the contractor is entitled. This is usually a provision allowing the con-tractor to apply to the consultant for additional time to complete. When properly employed,this mechanism would extend the time to complete by the fixed period allowed, thereby set-ting a new completion date, with the other contractual rights and obligations of the partiesusually otherwise unaffected. If the owner is entitled to liquidated damages, the owner wouldbe entitled to those damages from the new date. Without such a provision, or without theproper application of an extension of time clause, the contractor remains entitled to additionaltime to complete but that time period is not defined and therefore time is put at large, with theresult, among others, that the owner is not entitled to liquidated or delay damages at all.

These issues are well illustrated by the decision of the B.C. Court of Appeal in the Perinicase, where the owner, the Greater Vancouver Sewerage and Drainage District, was supposedto deliver in good repair certain engines to be incorporated into the Iona Island sewage dispos-al plant on the Fraser River near Vancouver, B.C. The contract contained an extension of timeclause, allowing the contract completion time to be extended for certain delay events. Asthings developed, the District did not have the engines ready when they were scheduled to as aresult of the fault of an engine supplier with whom the District had a separate contract; thislate delivery constituted the breach of an implied terms of the contract by the District. [FN18]This caused substantial interference to the completion of its work. The contractor was behindits work schedule independently of its late receipt of the engines, and it had the benefit of a 46days extension of time for other circumstances, also unrelated. The contractor completed lateand the Court found that a great many items of work that caused a delay to the completion ofthe contract generally had no relation to completion of the engine work. Despite these concur-rent delays, the B.C. Court of Appeal relieved the contractor of its obligation to pay liquidated*76 damages arising from the delay because the District (or contract certifier-- the case reportis unclear on this point) had failed to extend the contract time to take into account the delaycaused by late provision of the engines.

As Davey J.A put it in his reasons:

Even if the plaintiff [contractor] had not been otherwise in default, the repairs to theengines would have prevented the plaintiff from completing the power house by January10, 1963, and so fulfilling its contract. In my opinion the defendant's [District's] delay,although preventing the completion by the due date of only one unit of several coveredby the entire contract, disentitles the defendant to liquidated damages for the plaintiffsfailure to complete the whole plant by the due date.

...



... neither the fact that the work would not have been completed in time if there hadbeen no delay by the defendant, nor the fact that the plaintiff's tardiness or wrongful actscaused some of the delay, prevents the plaintiff's being released of its liability for the li-quidated damages through the defendant's substantial defaults that delayed it in complet-ing the contract on time. [FN19]

It can be seen from Perini that if the facts had been different and the ownercaused delayhad led to a proper extension of the completion date, time would not have been put at largeand the owner would have been able to enforce liquidated damages from the new completiondate. To put it another way, a provision for the extension of time for the contractor to com-plete work under a construction contract operates as much for the benefit of the owner as itdoes for the contractor. It is designed to allow owners to maintain a fixed contractual comple-tion date notwithstanding owner-caused delay. [FN20]

Every trivial or insignificant interference on the part of owners or consultants may not ne-cessarily put time at large as not every request for an extra, design modification, or other sup-posed interference will result in the contractor being entitled to an extension of time to com-plete the work. The prevention principle is that the delay must prevent the contractor from fin-ishing the work on time: it must render it impossible or impracticable for the contractor to dothe work in the contracted time. [FN21]

3. FAILURE TO STIPULATE A NEW DATE / BREAKDOWN OF CONTRACT MA-CHINERY

The prevention principle also applies to extension of time clauses. The owner's (or con-sultant's) conduct or omission might prevent the extension of time *77 clause from achievingits purpose of properly setting a new date for the contractor to complete the work in a timelymanner. In particular, this arises where the consultant or owner fails to exercise its rights un-der the extension of time clause promptly or properly to set a new date for completion of thecontract. The contractor must know the date to which the work has been extended, so that itmay plan its work to meet the new deadline.

In the absence of a clause permitting time to be extended as a result of an act of interfer-ence by the owner or the consultant, time will be put at large. [FN22] As in the Perini case,the same result occurs where the extension of time provision is not used or if it is improperlyand unfairly used.

In addition to those simple examples, the following variants and special problems, perhapsamong others, should also be considered:

(a) Where the extension of time clause has been incorrectly or unreasonably appliedin the circumstances.

(b) Where the consultant does not grant an extension because the contractor fails tomake the request within the time stipulated.

(c) Where the owner prevents the consultant from using the extension of time provi-sion to fix a new completion date.

(d) Where the consultant fails to promptly fix the extension of time (including a



delay until after the actual completion of the contract work by the contractor).

(a) Where extension of time clause has been incorrectly or unreasonably applied in thecircumstances

In responding to the contractor's request for an extension of time based upon an interferingevent, the consultant is not required to come to a perfect conclusion, unassailable in later ana-lysis, to preserve an effective final completion date. It is sufficient that the consultant exercisehis or her authority reasonably and fairly in respect of requests to extend the schedule in a fairand reasonable manner. [FN23] Perfection is not required but reasonable and fair conduct isthe hallmark of a proper extension of time.

Even if the contractor fails to do so, it has been suggested that so long as the contractprovides for the right of a tribunal to open up, review and revise decisions of the consultant,then a perverse decision by the consultant will not have the effect of putting time at large.[FN24] On the other hand, this suggestion has been criticized and has been held to be inap-plicable where the decision on delay is so perverse that the contract could not provide a powerto extend time. [FN25] This principle may be limited to circumstances where the contractprovides an ability to open up, review and revise*78 decisions of the consultant that wouldpermit the contractor to establish his or her true position within a reasonable time to completethe contract work. [FN26] Few contracts in use in Canada contain such a term. This wouldmeet the policy concern in the British Columbia Hawl-Mac case, that the new date should putthe contractor in a position that, if necessary, the contractor would be able to accelerate in or-der to complete within the extended period. Failing to permit the contractor to do so mayeither be an act of prevention in itself or a failure to abate fully the act of prevention that oc-curred at first, and which the extension of time is sought to cure.

Where the consultant unreasonably fails to grant an extension, through no fault of theowner, it may seem unfair to visit upon the owner the consequence of the consultant's failure,particularly in a case where the consultant's actions are within its adjudicative role, which isdistinct from its role as an agent of the owner. [FN27] Nevertheless, the authorities supportthe conclusion that a failure by the contractor administrator will have the result of putting timeat large without any involvement by the owner. [FN28] It would appear that the reasoning infavour of such a conclusion is either that the consultant's default should be attributed to theowner (which we consider to be a weak point given the theoretical distinction between theconsultant's adjudicative and representative roles), or that notwithstanding the owner's inno-cence of the default, the consultant's failure prevents the extension of time mechanism fromworking properly, thereby prejudicing the contractor's ability to plan its work and leading totime being put at large.

(b) Where consultant does not grant an extension because contractor fails to make re-quest within time stipulated

If time may be put at large after an owner-caused delay event where no new date is set un-der the contract mechanism, should the same reasoning apply where no new date is set is be-



cause of the failure of the contractor to apply for an extension of time within the period formaking such an application (or for providing notice of delay) as set out in the constructioncontract? While the issue has not been addressed in Canada, it arose in an Australian case,Gaymark Investments Pty Ltd. v. Walter Construction Group Ltd. [FN29] Gaymark was theappeal of an arbitrator's award that had denied liquidated damages to the owner arising from adelay beyond the date fixed for practical completion or, as the contract provided, “within anyextended time granted or allowed by the Superintendent [contract administrator] pursuant tosub-clause 35.3.” [FN30] The contractor was delayed for 77 working days, a delay for whichthe owner was responsible. The contractor's application for an extension was barred becauseof its failure to meet a notification requirement. The owner claimed for liquidated damagesrunning from the date of completion (which *79 had been adjusted for other reasons), but thearbitrator dismissed the owner's claim because the owner had caused the delay. The arbitratorapplied the principle that an owner could not be enriched by its own wrong. In upholding thedecision of the arbitrator on this point, Bailey J. of the Northern Territory Supreme Courtstressed there was no provision in the contract granting the consultant discretion to allow anextension of time in the circumstances, but rather the contract explicitly provided that if thecontractor were delayed by the owner, it was entitled to an extension if the application werefiled on time, and was disentitled otherwise. If liquidated damages were permitted in the cir-cumstances, this “would result in an entirely unmeritorious award of liquidated damages fordelays of [the owner's] own making,” in addition to avoiding a claim by the contractor fordelay. [FN31] In support of this the Court referred to the principle, articulated in the Englishcase Peak Construction (Liverpool) Ltd. v. McKinney Foundations Ltd., [FN32] that liquid-ated damages and extension of time clauses in printed form contracts should be construed con-tra proferentem, a point to which we will return.

There is some logic to the Gaymark case. Time may be put at large and liquidated dam-ages denied to the owner as a result of factors that are not attributable to the owner, such asbreakdown of contractual machinery. If the extension provision cannot operate due to failureto fulfil a condition precedent that is a form of breakdown, or at least inoperability of the timeextension mechanism. Gaymark, however, has been academically criticized [FN33] on thebasis that it rewards the contractor for failing to apply for an extension of time within the lim-its established by the contract. The contractor has an opportunity to apply for an extension oftime. Its failure to seek that allowance is its own fault. Gaymark has been expressly not fol-lowed in England in the notable case Multiplex Constructions (UK) Ltd v. Honeywell ControlSystems Ltd, [FN34] which involved delay in the supply and installation of electronic systemsin Wembley Stadium. In Multiplex, the subcontractor argued that, as with the contractor inGaymark, its failure to fulfil notice requirements prevented the owner from granting an effect-ive extension to the contract time, thereby putting time at large and relieving the subcontractorfrom liability for liquidated damages. Justice Jackson commented:

Whatever may be the law of the Northern Territory of Australia, I have considerabledoubt that Gaymark represents the law of England. Contractual terms requiring a con-tractor to give prompt notice of delay serve a valuable purpose; such notice enables mat-ters to be investigated while they are still current. Furthermore, such notice sometimesgives the employer the opportunity to withdraw instructions when the financial con-



sequences become apparent. If Gaymark is good law, then a contractor could disregardwith impunity*80 any provision making proper notice a condition preceding. [FN35]

(c) Where owner prevents consultant from using extension of time provision to fix newcompletion date

If the owner has a hand in preventing the consultant from granting a proper extension tothe contractor arising from owner-caused delay, then that act of prevention will be sufficientto put time at large.

(d) Where consultant delays in fixing extension of time (including a delay until after ac-tual completion of contract work by contractor)

This point was specifically considered in Canada in the Hawl-Mac case with the result thatan extension made after the completion was considered too late. A different conclusion wasreached by the English Court of Appeal in the case Amalgamated Building Contractors Ltd. v.Waltham Holy Cross Urban DC, [FN36] where the architect was held to have validly exten-ded the time for completion of the work after the original completion date had passed andwhere the delay was caused by difficulties in the contractor obtaining labour and materials,which justified an extension under the terms of the contract in question. In that case, the retro-active setting of time was justified on the basis that there was no fault on the part of the ownerfor the delay and on that basis the Court concluded that the retroactive extension was valid.[FN37] In another instance, the Court determined that the wording of the clause permitting ex-tensions of time indicated that it did not apply to fixing a new date for completion retroact-ively. [FN38] In a New Zealand case, Anderson v. Tuapeka County Council, [FN39] where thedelay was the result of extras ordered by the owner, the Court held that the consultant was ob-ligated to grant the extension to the contractor before the contractor embarked upon the extrawork. [FN40] This was distinguished in a subsequent New Zealand case, Fernbrook TradingCo. Ltd. v. Taggart [FN41] on the basis that

no one rule of construction to cover all circumstances can be postulated and the bestthat can be said on the present state of the authorities is that whether the completion dateis set at large by a delay in granting an extension must depend upon the particular cir-cumstances pertaining.

In an effort to reconcile the previous authorities, Roper J. observed that there could be nojustification for delaying a decision as to the appropriate extension where the sole cause of thedelay was the ordering of extra work, [FN42] but that where *81 the causes of delay do notrest with the owner and were such as to make the duration of the delay uncertain, a better casecan be made for allowing a delay in determining the contract extension. [FN43] We suggestthat the guiding principle should be to give the contractor fair notice of the time extension,howsoever caused, so that the contractor can plan its work.

Perhaps the best that can be said from these authorities is that where a consultant makes adelayed determination of a time extension and a dispute arises over whether time was put atlarge, it is likely that both the owner and contractor will be able to marshal legal arguments.



(f) Where contract machinery fails to operate

Where the extension of time provisions within a construction contract simply cannot oper-ate to extend the contract time as a result of an act of prevention by the owner, time will beput at large. [FN44] This illustrates the point that time is put at large not essentially to punishthe owner for the act of prevention but as a consequence of the additional time given to thecontractor and its impact on the fixed completion date, and any liquidated damages provision,in the absence of a properly used extension of time mechanism.

An example of where the contract machinery fails to operate may arise in contracts thatcontain detailed and complex notice provisions. Some contracts require that the contractorprovide lengthy documents, schedule updates, and other detailed information in support of arequest for an extension of time. If a consultant arbitrarily and unreasonably rejects the con-tractor's application as being unsupported by the required documentation, it may render timeat large as the contract machinery has failed to operate by the improper conduct of the con-sultant in refusing to properly consider the request for an extension.

4. WAIVER OF COMPLETION DATE

Where the owner waives the specified time for completion, either explicitly or by its con-duct, time will be put at large and the contractor will be required to complete within a reason-able time. Waiver by conduct can arise where the owner fails to complain about delay and ac-cepts the contractor's explanation for its inability to complete within a stated time, therebyleading the contractor to believe that its strict rights will not be insisted upon. [FN45]

5. NO COMPLETION DATE

Where no complete date is stipulated in the contract, time is at large from the outset. Un-der general principles of contract law, the contractor is required to complete*82 in a reason-able time. [FN46] There is an unresolved issue about whether the owner is, after commence-ment of the work, entitled to stipulate a date and, if that date is reasonable, to treat failure tomeet it as constituting default, and potentially default of an essential term.

It would be unusual to see a liquidated damages term in a contract that lacked a fixed com-pletion date from the outset. While we are not aware of a case that has specifically consideredthe point, it would be consistent with the principles reviewed in this paper if such a provisionwe considered unenforceable.

6. HOW MUCH INTERFERENCE IS REQUIRED TO PUT TIME AT LARGE

An act of prevention does not have to make completion of the work impossible. Ahindrance of the contractor's work may be enough. As Jackson J. stated in the Multiplex case

If a variation instruction [the form of interference in issue] affects the date uponwhich Honeywell [FN47] is going to complete by a small period, one may say that this is



a hindrance; it does not in any sense make the installation of the electronic systems im-possible. On the other hand, the matter does prevent completion on the due date and itshould be characterized as “prevention”.

If a direction issued by Multiplex pursuant to clause 4.2 requires Honeywell to post-pone the execution of any work, such a direction may be characterised as a postpone-ment instruction [for which extensions could be granted, under the subcontract in ques-tion]. [FN48]

That being said, should every act by the owner that might impede the contractor have theeffect of putting time at large? The policy problems in so broad an approach were identifiedby Professor I.N.D. Wallace Q.C. in the following way:

a careful trawl through the history of most construction projects after the event by acontractor in serious delay can often disclose some minor variation or failure of partialpossession onto which a plausible prevention assertion can be attached, however minim-al its actual impact on progress, so arguably defeating the liquidated damages clause al-together under the prevention doctrine even where the delay is found to be a comparat-ively trivial part of the total delay. [FN49]

Professor Wallace's solution is that including acts of prevention or breach by the owner inpermitted extensions of time allow the preservation of a fixed completion date and liquidateddamages, which “has been the basis of informed drafting *83 advice to construction ownersfor many years,” a point we referred to earlier in this paper. We believe that the guiding prin-ciple is that the contractor should be permitted a proper extension of time so that it can effect-ively plan its work. It is artificial to analyze delays after the fact to determine if the eventcomplained of caused a delay. The time to address the question of whether an act of preven-tion by the owner or the consultant will cause a delay is at the time it occurs rather than by thereconstruction of subsequent events with the benefit of hindsight.

It should be added that notice provisions applicable to contractors, as in the CCDC2 con-tract referred to earlier, significantly help the owner with this problem as well. Their functionis to alert the owner to claims and allow swift evaluation. [FN50] Minor acts of prevention notthe subject of proper notice will not put time at large, unless perhaps the reasoning in Gay-mark is applicable.

7. INTERPRETATION OF LIQUIDATED DAMAGES CLAUSES

Historically, the courts have been hostile to liquidated damages clauses, regarding such aclause as an unenforceable penalties unless it constitutes a genuine pre-estimate of damagesby the parties, rather than acting in terrorem. The origins of the court's power to relieveagainst such clauses was grounded in its equitable jurisdiction, which has been related to itsjurisdiction to relieve against unconscionable contracts and also its hostility to the parties pur-porting to oust by agreement the courts' role in assessing damages arising from contractualbreach.

The strict interpretation of liquidated damages provisions has extended into the time atlarge context. Salmon L.J. said in Peak Construction (Liverpool) Ltd. v. McKinney Founda-



tions Ltd., [1970] 1 BLR 111:

The liquidated damages and extension of time clauses and printed forms contractmust be construed strictly contra proferentem. If the employer wishes to recover liquid-ated damages for failure by the contractors to complete on time in spite of the fact thatsome of the delay is due to the employer's own fault or breach of contract, then the ex-tension of time clause should provide, expressly or by necessary inference, for an exten-sion on account of such a fault or breach on the part of the employer.

The same point was made by Allan J. of the B.C. Supreme Court in the Dilcon case:

contractual clauses dealing with extensions of time and penalties for delay will beconstrued strictly contra proferentem. [FN51]

It is doubtful that liquidated damages are, or should be, regarded with continuing judicialhostility. [FN52] They are useful precisely where it is difficult to anticipate future damagesand therefore it is somewhat unhelpful to judge such clauses on whether they have success-fully estimated the likely damages arising from contractual breach, even if regarded ex ante.As regards the prohibition against penalty clauses designed to operate in terorrem, thereseems nothing wrong with providing *84 a party with an economic incentive to abide by itsenforceable promises. Also, it has been observed that at least where liquidated damagesclauses preclude the owner from suing for actual damages, the contractor may be benefitted inso far as the costs of delay are clearly known in advance and the contractor may therefore actmore rationally in his approach to completion in circumstances where he is delayed, for in-stance in determining whether to incur significant costs of acceleration.

Associated with this hostility to penalty clauses and strict approach to liquidated damages,the courts also historically interpreted liquidated damages clauses strictly against the owner.In light of the considerations we have just reviewed that undercut the traditional criticisms ofliquidated damages, and also the fact that owners need not invariably be the drafters of con-tracts that include liquidated damages, the traditional application of contra proferentem inter-pretation against the owner has both policy-related and theoretical problems. However, astrong case can be made that liquidated damages clauses should be treated sceptically and in-terpreted contra proferentem where they are found in a contract that also permits the owner torecover its actual damages in addition to liquidated damages.

As regards the interpretation of extension of time clauses, Jackson J. in the Multiplex casehad the following to say, after reviewing the applicable authorities:

It seems to me that, in so far as an extension of time clause is ambiguous, the courtshould lean in favour of a construction which permits the contractor to recover appropri-ate extensions of time in respect of events causing delay. This approach also accordswith principles of construction set out by Lewison in “The Interpretation of Contracts”(3d edition, 2004). That principle reads as follows:

Where two constructions of an instrument are equally plausible, upon one ofwhich the instrument is valid and upon the other of which it is invalid, the court shouldlean towards that constructions which validates the instrument.



8. CALCULATING WHAT A REASONABLE TIME FOR COMPLETION MAY BE

If time is put at large with the consequence that liquidated damages may not be chargedand that the contractor is required to complete within a reasonable time, there remains thequestion of how the reasonable time to complete the contract should be calculated. It has beensuggested that where there was an original clear completion date, the reasonable time is theoriginal time stipulated in the contract plus an allowance representing the impact upon theschedule of the delaying event that is attributable to the owner or the consultant. Where theoriginal completion date was arbitrary or in any event not achievable by the contractor this islikely still to cause the contractor problems, but it seems fair that the contractor be held to theoriginal bargain made as regards completion, with such adjustments as are appropriate for thedelay.

A related question is whether a fixed completion date may be re-established, giving rise tothe possibility of liquidated damages once time has been put at large. We are not aware of anyauthority for this outcome in the cases directly on point, but an argument might be made for itbased upon [English sale of goods case].

*85 9. WHERE TIME IS OF THE ESSENCE

Where time is of the essence in a contract, the non-breaching party is entitled to treat thecontract as being at an end if the other party fails to fulfil its obligation by the time and datespecified. This is different from whether a time for completion has been set or time is at large,but the concepts can interrelate in fact. If time is not of the essence of a construction contract,the contractor who completes late may still be in breach for failing to complete by a date stip-ulated for completion. Indeed, it has been suggested that the presence of liquidated damagesand extensions of time provisions in a construction contract suggest that the parties do notconsider time to be of the essence, since they contemplate the remedy for lateness to be dam-ages, rather than termination of the contract. [FN53] In practice if the schedule is not met,most owners would normally prefer compensation to the difficulty of finding a replacementcontractor, unless it becomes evident that the contractor is unsuitable or unlikely to completeat all.

Despite the value of maintaining the distinction between the date of contract completionand whether that date permits the owner to terminate for its breach, in practice the distinctionis sometimes blurred when contractors and owners proceed after the contractual completiondate and make no reference to it. One case, Charles Rickards Ltd. v. Oppenheim, [FN54] in-volved delivery of a Rolls Royce automobile. The buyer and seller had allowed the deliverydate to pass with a continuing intention of completing the contract and the Court held that inso doing the original delivery date had ceased to have any meaning and had been replaced byan obligation that the car be delivered within a reasonable time. As usual with time ceasing tobe of the essence, the customer retained a right to set a new reasonable date for delivery,which would have the effect of making time of the essence again. Here, not only did timecease to be of the essence, but the stipulated time for delivery was replaced with an obligationthat the delivery be within a reasonable time and therefore time was also put at large. The con-



clusion of this case is interesting because when time is put at large it is not normally con-sidered open to the owner to reset a fixed contract completion date.

10. THE INTERRELATION WITH CONCURRENT DELAY

Under the Hawl-Mac case, described above, concurrent delay on the part of the contractordid not prevent time from being put at large by acts of prevention on the part of the owner.[FN55] This made sense on the premise that the delay caused to the contractor by the ownerwas real. An allowance ought to have been made for that and in failing to make that allowanceit was now impossible to identify a clear contractual completion date. An opposite conclusionwas reached in the Australian *86 case Turner Corporation Ltd. v. Co-ordinated IndustriesPty Ltd. & ORS. [FN56] There, the contractor had been responsible for considerable delay.The owner was responsible for a number of acts that would not have been consistent with thecontractor's original schedule but that were, in fact, consistent with the contractor's actualschedule. Taking the contractor's delayed schedule as the baseline, no actual delay had, as amatter of fact been, suffered by the contractor as a result of the owner's acts of supposed pre-vention. Not surprisingly, perhaps, the Court held that there must be actual delay caused bythe owner and that the sort of concurrent delay considered here was insufficient to constitutean act of prevention. [FN57]

The question of when concurrent delay actually can put time at large is likely to be atroublesome part of the prevention/time at large principle, at least in practice. From the per-spective of theory, it may be clear enough to say that if the owner actually causes delay to thecontractor, it must be provided for in a time extension, irrespective of how much other delayis caused by the contractor, or time will be put at large. As with concurrent delay issues gener-ally, there is often a real and difficult task in sorting out the causes of delay and their impactupon the schedule, but that is essentially a practical question of proof rather than strictly a leg-al issue.

11. STANDARD CONTRACT TERMS

We now turn to how these issues might apply in the context of typical Canadian construc-tion contacts, and for that purpose we will begin with the popular form CCDC2-2008 Stipu-lated Price Contract published by the Canadian Construction Documents Committee/Comitécanadien des documents de construction. General condition 6.5 of CCDC2-2008 provides asfollows:

6.5.1 If the Contractor [FN58] is delayed in the performance of the Work by an ac-tion or omission of the Owner, Consultant or anyone employed or engaged by them dir-ectly or indirectly, contrary to the provisions of the Contract Documents, then the Con-tract Time shall be extended for such reasonable time as the Consultant may recommendin consultation with the Contractor. The Contractor shall be reimbursed by the Ownerfor reasonable costs incurred by the Contractor as the result of such delay. [FN59]

Note that GC6.5.1 refers only to acts or omission of the Owner or consultant “contrary tothe provisions of the Contract Documents.” A question therefore arises of whether the consult-



ant has authority under this clause to recommend an extension of time for acts of preventionthat are not “contrary” to the provisions of the Contract Documents, for instance if they arebreaches of implied terms. If the consultant has no authority under GC6.5.1 to grant such anextension in those circumstances, then a contractor who believes he has been prevented fromtimely completion*87 by such an act of prevention may argue that time has been put at largeand the owner has no ability to ameliorate that by setting a new completion date, absent agree-ment by the contractor. The owner might respond by suggesting that “contrary to the provi-sions of the Contract Documents” includes implied terms.

With regards to the impact of change orders on the contractor's ability to complete withinthe schedule, CCDC2-2008 authorizes the consultant to give additional time for change orders(GC6.2) and change directives (G.C6.3.12). So long as the consultant provides such adjust-ments properly and reasonably, time should not be put at large.

Is the consultant restricted in the time the schedule extension can be made? CCDC2-2008does not provide for a limit on the time in which the consultant may validly determine the ex-tension of time arising from the owner's act of prevention. The reasoning in the Hawl-Maccase, discussed at the beginning of this article, suggests that the consultant should movepromptly and not wait too long in making that determination and that the contractor would beable to argue that an unreasonable delay in determining the amount of the extension wouldprevent the contractor from effectively organizing and planning the work to meet that newdeadline. How long a period may be permitted between notification of the delay event and itsdetermination remains an open question.

Further, the grounds on which the consultant is entitled to grant an extension under GC6.5are broad, thereby reducing the chance that there could be a delay event that might put time atlarge for which the consultant lacks jurisdiction to grant a specific extension of time.CCDC2-2008 does however include a notice requirement for extensions of time for owner-caused delay:

6.5.4 No extension shall be made for delay unless Notice in Writing of the cause ofdelay is given to the Consultant no later than 10 Working Days after the commencementof the delay. In the case of a continuing cause of delay only one Notice in Writing shallbe necessary.

This limitation could presumably be waived by the owner, and in any event the contractorwould normally agree to such a variation, unless the contractor intends to argue that its ownfailure to provide notice in time prevents the consultant from making a valid extension oftime, with the effect that an act of prevention by the owner has put time at large. [FN60] Asnoted above, that reasoning has been challenged.

As regards acts by other contractors, in circumstances where the owner has engaged mul-tiple contractors directly, it is suggested that the answer will turn on the owner's obligations(express or implied) to the late contractor in respect of the co-ordination of work.

12. TIME AT LARGE UNDER CIVIL LAW



The prevention principle in construction contracts has been applied in the province ofQuebec under the Civil Code, [FN61] and in particular its courts have *88 adopted the reason-ing of common law courts on the point. [FN62] It seems clear that the prevention principle, ifnot the whole panoply of time at large principles as they have been articulated in the commonlaw case law, is the law in Quebec. [FN63] The cases do not, however, discuss explicitly theorigin of the prevention principle in Quebec (except by citing common law cases and referringto a discussion in Goldsmith on Building Contracts) and do not root the principle in a specificprovision of the Civil Code.

A possible theoretical basis for applying time at large principles in civil law jurisdictionsis considered in the paper “Common Law ‘Time at Large’ Arguments in a Civil Law Context”by English authors John Bellhouse and Paul Cowan. [FN64] The authors describe an interna-tional arbitration in which they participated, held in Miami, governed by the law of a SouthAmerican country (unnamed) in which the construction project took place. That country had,as might be expected, a civilian legal system. In that arbitration, “time at large” argumentswere advanced based upon certain general provisions of the country's civil code. From theirexperience in this arbitration, the authors conclude that the prevention principle and its abilityto put time at large is arguable and can, as a theoretical matter, be based on the “broad equit-ably based powers and discretion” available under most civil codes, including provisions im-plying a duty of good faith contract performance. [FN65]

Despite the interrelation suggested by Bellhouse and Cowan between the prevention prin-ciple and good faith contract performance obligations in civil law, the prevention principle incommon law jurisdictions does not depend on the existence of any general duty of good faith.The existence of such a duty has been explicitly rejected in the common law provinces, atleast outside specific classes of contract such as insurance, and despite the absence of such ageneral duty the prevention principle is applicable at common law. [FN66]

13. FINAL COMMENTS

As we have seen, the principle of “time at large” in construction contracts is *89 alive andwell in Canada. As well, we have the benefit of extensive commentary and analysis on thisprinciple in England and elsewhere in the Commonwealth, some of which have been extens-ively cited in other jurisdictions. The prevention principle, and its application to completiondates in the context of allegations of delay, provides a useful tool for the analysis of construc-tion delay claims. Our intention herein has been to introduce the topic of “time at large” witha view to encouraging debate and further legal review of all of its aspects and impacts. Hope-fully, Canadian courts and construction lawyers will see more of these principles in the future.

Further reading

Daniel Atkinson, “Administration of Claims” in Construction Law Handbook, 2009 ed(London: Institute of Civil Engineers, 2009) (Sir Vivian Ramsey et al., eds). See pp. 732 ff

David Atkinson, “Time at Large” (April 8, 2007) David Atkinson Limited David Chappell



et al, Building Contract Claims, 4th ed (Oxford, UK: Blackwell Publishing Ltd., 1988)

Ian Cocking, “Construction Law Update: Time at Large” (Jan. 11, 2008) Mondaq Busi-ness Briefing

Paul Cowan and John Bellhouse, “Common Law ‘Time at Large’ Arguments in a CivilLaw Context” (2007), 23 Const. L.J. No. 8 592-605

Brian Eggleston, Liquidated Damages and Extensions of Time in Construction Contracts,3d ed (London: John Wiley & Sons, 2008) at 33

Peter Godwin et al, “The prevention principle, time at large and extension of time clauses”April 21, 2009 Lexology

Peter Godwin et al, “Extensions of Time: What Happens if the Contractual MachineryBreaks Down?” (July 2010) 17 Herbert Smith newsletter

Immanuel Goldsmith and Thomas G. Heintzman, Goldsmith on Canadian Building Con-tracts, 4th ed (Toronto: Carswell, 1988) at 5-10

David Goldstein and Bree Miechel, “Time at large” (January 2008) Minter Ellison Con-struction Law Update

Dominic Helps, Mr. Justice Jackson v. Gaymark [2007] 19 Building.co.uk

Roger Knowles, 150 Contractual Problems and their Solutions, 2d ed (Oxford, UK:Blackwell Publishing Ltd., 2005) at para. 5.9

Hamish Lal, “Extension of Time: The Conflict Between the Prevention Principle and No-tice Requirements as a Condition Precedent”. Paper presented to the Society of ConstructionLaw (United Kingdom), April 2002

Hon. Humphrey Lloyd Q.C., “Time ‘at large’ does not lead to riches” 1992 Building

Patrick J. O'Neill, “Challenges to Liquidated Damages” (Autumn 2008) ADR PartnershipDigest 1

Keith Pickavance, “Calculation of a Reasonable Time to Complete when Time is atLarge” [2006] 2 International Construction Law Review 167-186

Sir Vivan Ramsey et al, eds, Construction Law Handbook (2009) (London: ThomasTelford Publishing, 2009)

*90 S.G. Revay, “Time Extension in Construction Contracts” (1984) 6 C.L.R. 253 An-drew Rimmer, “Time at large” (October 2007) Structure newsletter of Pannone LLP

David Thomas Q.C., “Wembley Stadium: extra time but time not at large” (2007) 2 Const.L. Int'l 18-19



Andrew Tweeddale, “FIDIC's clause 20: a common law view” [2006] 1 Const. L. Int'l 27

I.N. Duncan Wallace, Q.C., Hudson's Building and Engineering Contracts, 10th ed(London: Sweet & Maxwell,) at 606 and 1172

I.N. Duncan Wallace, Q.C., “Prevention and Liquidated Damages: A Theory Too Far?”(2002), 18 BCL 82

Adrian Williamson, Q.C., “Concurrency in Construction Delays” (September 7, 2005)Keating Chambers Barristers seminar

Jeremy Winter, “Little chance of time at large” (April 2007) Maker & McKenzie LLP cli-ent alert

Jeremy Winter, “Time at Large” (March 2002) Baker & McKenzie

Ong Rui Ying, “Time at Large and Reasonable Time for Completion”, M.Sci. thesis, Uni-versiti Teknologi Malaysia, June 2007

Cases

Amalgamated Building Contractors Ltd. v. Waltham Holy Cross Urban DC, [1952] 2 AllE.R. 452 (C.A.)

Anderson v. Tuapeka County Council (1900), 19 N.Z.L.R. 1 (C.A.)

Balfour Beatty Building Ltd. v. Chestermount Properties Ltd., 62 B.L.R. 1 (Queen's BenchDivision)

Bernhard's Rugby Landscapes Ltd. v. Stockley Park Consortium (no. 2)

Percy Bilton Ltd. v. Greater London Council (1982), 20 B.L.R. 1 (H.L.)

Développement Takana inc. c. Québec (Corp. d'hébergement), 2009 QCCS 3787 (S.C.)

Dodd v. Churton, [1897] 1 Q.B. 562 (Eng. C.A.) (see 566)

Fernbrook Trading Co. Ltd. v. Taggart, [1979] 1 NZLR 556 (S.C.)

Foundation Co. of Canada v. Alberta, 1986 CarswellAlta 91, [1986] A.J. No. 401 (C.A.)

Gaymark Investments Pty Ltd. v. Walter Construction Group Ltd. (2000), 16 BCL 449

Hawl-Mac Construction Ltd. v. Campbell River (District) (1985), 60 B.C.L.R. 57, 10C.L.R. 177 (S.C.)

Holme v. Guppy (1838), 150 E.R. 1195, 3 M. & W. 387

McAlpine Humberoak Ltd. v. Merdermott International Inc. (No. 2) (1991), 58 Build L.R.



61 (C.A.)

Miller v. London County Council, [1934] All E.R. Rep. 657

Multiplex Constructions (UK) Ltd. v. Honeywell Control Systems Ltd., [2007] EWHC 447(TCC) (Queen's Bench Division (Tech. & Constr. Court))

*91 Peak Construction (Liverpool) Ltd. v. McKinney Foundations Ltd., [1970] 1 BLR 111

Perini Pacific Ltd. v. Greater Vancouver Sewerage & Drainage District (1966), 57 D.L.R.(2d) 307 (B.C. C.A.); affirmed [1967] S.C.R. 189

Rapid Building Group v. Ealing Family Housing Association (1984), 29 B.L.R. 5 (C.A.)

Redbrooke Estate Ltd. c. E.G.M. Cape & Co. (1956) Ltd. (30 décembre 1974), no C.S.Montréal 739 330, [1974] J.Q. No. 2 (S.C.)

Reid v. McDonald (1906), 1906 CarswellNS 54, 1 E.L.R. 171 (T.D.)

Shawton Engineering Ltd. v. DGP International Ltd. (t/a Design Group Partnership),[2005] EWCA Civ 1359

Sindall Ltd. v. Solland (June 15, 2001), Doc. HT 01 129 (Q.B.) -- Hon Humphrey LloydQ.C.

Industries Falmec inc. c. Société de Cogénération de St-Félicien, société en commandite/St-Félicien Cogeneration Ltd. Partnership, 2005 QCCA 441, [2005] R.D.I. 248

Trollope & Colls Ltd. v. North West Metropolitan Regional Hospital Board, [1973] 1W.L.R. 601 (U.K. H.L.)

Turner Corporation Ltd. v. Co-ordinated Industries Pty Ltd. & ORS (1995), 11 BCL 202

Turner Corporation Pty Ltd. (Receiver & Manager Appointed) v. Austotel Pty Ltd. (1994),13 BCL 378

Wells v. Army & Navy Co-Operative Society (1902), 86 L.T. 764 at 765

Wiltshier Construction (Scotland) Ltd. v. Drumchapel Housing Co-operative Ltd., [2003]ScotCS 21 (Court of Session, Inner House)

[FN1]. As cited in Keith Pickavince, Delay and Disruption in Construction Contracts, 3rd ed(Informa Legal Publishing, 2005) at §6.90, this principle is simply that no person can take ad-vantage of their own wrong; a person that prevents a thing from being done cannot complainof the non-performance occasioned.

[FN2]. Hamlet (I.v.188-89).

[FN3]. Hawl-Mac Construction Ltd. v. Campbell River (District) (1985), 10 C.L.R. 177, 60



B.C.L.R. 57 (S.C.).

[FN4]. Damages for breach of contract, if applicable, would be the contractor's usual remedy.

[FN5]. See Sir Vivian Ramsey et al, eds, Construction Law Handbook 2009 (London: ThomasTelford Publishing, 2009) at 732-733 and Keith Pickavance, “Calculation of a reasonable timeto complete when time is at large” (2006) 2 Intl Const LR 167 at 168, where the categories aredefined slightly differently but in our view to the same effect.

[FN6]. See Kerr Engine Co. v. French River Tug Co. (1894), 21 O.A.R. 160 (C.A.); affirmed1895 CarswellOnt 26 (S.C.C.); Findlay v. Stevens (1910), 20 O.L.R. 331 (C.A.); OttawaNorthern & Western Railway v. Dominion Bridge Co. (1905), 36 S.C.R. 347; Papps v.Melville (1858), 1 Chy Chrs. 131, 16 U.C.Q.B. 124; Page v. Green (1904), 3 O.W.R. 494(C.A.); Beck v. York (Township) (1914), 5 O.W.N. 836 (H.C.); affirmed (1914), 7 O.W.N. 493(C.A.); Perini Pacific Ltd. v. Greater Vancouver Sewerage & Drainage District (1966), 57D.L.R. (2d) 307 (B.C. C.A.); affirmed [1967] S.C.R. 189, 60 D.L.R. (2d) 385; Redbrooke Es-tate Ltd. c. E.G.M. Cape & Co. (1956) Ltd. (30 décembre 1974), no C.S. Montréal 739 330,[1974] J.Q. No. 2 (S.C.); Warden Construction Co. v. Grimsby (Town) (1981), 2 C.L.R. 69(Ont. S.C.); affirmed (1983), 2 C.L.R. 69 at 93 (Ont. C.A.), ¶49; Hawl-Mac Construction Ltd.v. Campbell River (District) (1985), 10 C.L.R. 177, 60 B.C.L.R. 57 (S.C.); Dilcon Construct-ors Inc. v. British Columbia Hydro & Power Authority (1992), 7 C.L.R. (2d) 22 (B.C. S.C.);D.W. Matheson & Sons Contracting Ltd. v. Canada (Attorney General) (1999), 175 N.S.R.(2d) 201 (S.C.); additional reasons at 1999 CarswellNS 243 (S.C.); reversed 2000 NSCA 44,187 N.S.R. (2d) 62, 3 C.L.R. (3d) 22; Golden Hill Ventures Ltd. v. Kemess Mines Inc., 2002BCSC 1460, 7 B.C.L.R. (4th) 1, 22 C.L.R. (3d) 26 (obligation to provide completed drawingsinterrelates with contractor's obligation to complete by fixed date, para. 532). The point wasraised unsuccessfully on the facts, but without its being overruled in principle, in: WestholmeLumber Co. v. St. James Ltd. (1915), 21 B.C.R. 100, 21 D.L.R. 549 (C.A.) (extension of timegiven, under contract term--time not at large, penalty properly charged); McNamara v. Skain(1892), 23 O.R. 103 (C.A.) (defence dismissed for deficient pleading); Pelee Island Naviga-tion Co. v. Doty Engine Works Co. (1911), 23 O.L.R. 402 (Div. Ct.) (delay not caused byowner); Yates v. Law (1866), 25 U.C.Q.B. 562 (delay caused by owner not pleaded); andArchbold v. Wilson (1872), 32 U.C.Q.B. 590.

[FN7]. 150 E.R. 1195, 3 M. & W. 387.

[FN8]. Multiplex Construction (No. 2), above, para. 47.

[FN9]. S.M. Waddams, The Law of Contracts (5th), para. 496.

[FN10]. In Perini, Davey, Lord, and Bull JJ.A. were in agreement in the result and gave judg-ments that concurred in the result and on the issue of time at large.

[FN11]. Perini, p. 318 [DLR].

[FN12]. Ibid.



[FN13]. Penvidic Contracting Co. v. International Nickel Co. of Canada Ltd., [1975] 1 S.C.R.267, 53 D.L.R. (3d) 748; Duncan W. Glaholt and Markus Rotterdam, Halsbury's Laws ofCanada -- Construction HCU-42.

[FN14]. Multiplex, para. 61.

[FN15]. Trollope & Colls Ltd. v. North West Metropolitan Regional Hospital Board, [1973] 1W.L.R. 601 (U.K. H.L.).

[FN16]. Hawl-Mac, above.

[FN17]. Tucci v. City Concepts Construction Ltd. (2000), 2 C.L.R. (3d) 291 (Ont. S.C.J.),where such a general exclusion was insufficient to absolve the contractor from breach of animplied term that the project be completed in a competent, workmanlike manner within a reas-onable time.

[FN18]. Ibid per Davey J.A. at 312 [DLR].

[FN19]. Ibid at 313-314. Davey J.A. cites the following cases in favour of the view that con-current delay does not prevent time from being put at large: Holme v. Guppy; Roberts v. BuryImprovement Commissioners (1870), L.R. 5 C.P. 310 (Eng. Exch.); Dodd v. Churton; Russellv. Viscount Sa da Bandeira (1862), 143 E.R. 59, 13 C.B.N.S. 149 (C.P.), Wells v. Army &Navy Co-Operative Society (1902), 86 L.T. 764.


[FN21]. Trollope & Colls Ltd. v. North West Metropolitan Regional Hospital Board, [1973] 2All E.R. 260, [1973] 1 W.L.R. 601 (U.K. H.L.).

[FN22]. Peak Construction (Liverpool) Ltd. v. McKinney Foundations Ltd. (1971), 69 L.G.R.1 (Eng. C.A.).

[FN23]. Above, note, p. 169.

[FN24]. Ibid p. 169.

[FN25]. Peak Construction (Liverpool) Ltd. v. McKinney Foundations Ltd. (1970), 1 BLR 111(Eng. C.A.).

[FN26]. Time at large in a civil law context; Pharaon v. Bank of Credit and Commerce Inter-national SA (In Liquidation), [1998] 4 All E.R. 455, (H.H. Judge Humphrey Lloyd Q.C.).

[FN27]. Dilcon, above, 82-88, paras. 252-288 [CLR].


[FN29]. NTSC 143, Adj LR 12/20.

[FN30]. Above, para. 48.



[FN31]. Above, para. 69.

[FN32]. (1970), 1 B.L.R. 111 (Eng. C.A.), at para 79.

[FN33]. I.N. Duncan Wallace, Q.C. “Prevention and Liquidated Damages: A Theory TooFar?” (2002), 18 BCL 82; Keith Pickavance “Calculation of a Reasonable Time to Completewhen Time is at Large” [2006] 2 Intl Const LR 167-186.

[FN34]. [2007] EWHC 447 (TCC) (Queen's Bench Division (Technology & ConstructionCourt)).

[FN35]. At the risk, it should be added, however, of disentitling himself to a claim for dam-ages for delay.

[FN36]. [1952] 2 All E.R. 452 (C.A.).

[FN37]. Per Denning L.R. at 455.

[FN38]. Miller v. London County Council, [1934] All E.R. Rep. 657.

[FN39]. (1900), 19 N.Z.L.R. 1.

[FN40]. Per Stout C.J. at 9 and Williams J. at 13.

[FN41]. [1979] 1 N.Z.L.R. 556.

[FN42]. As in Anderson v. Tuapeka.

[FN43]. As in Amalgamated Building.

[FN44]. Multiplex, paras. 67-94.

[FN45]. Zanatta & Levac Bulldozing Ltd. v. British Columbia Hydro & Power Authority,[1978] 2 W.W.R. 322 (B.C. S.C.); W.J. Alan & Co. v. El Nasr Export & Import Co., [1972] 2All E.R. 127, [1972] 2 Q.B. 189 (C.A.).

[FN46]. Bajwa Consultants Inc. v. 578898 Ontario Ltd. (2004), 53 C.L.R. (3d) 211 (Ont.S.C.J.); Deminico v. Earls, [1945] O.W.N. 375 (H.C.); Goldsmith, 5 §1(d), p. 5-9; RogerKnowles, 150 Contractual Problems and their Solutions (London: Blackwell Publishing Ltd.,2005) para. 5.9.1.

[FN47]. Honeywell was the subcontractor arguing that time was put at large vis-à-vis its ob-ligations to the general contractor, Multiplex, to complete.


[FN49]. “Prevention and Liquidated Damages: A Theory Too Far?” (2002) 18 Building andConstruction Law 82.

[FN50]. Wallace, 83; H. Lal, “The rise and rise of time-bar clauses” (February 2007) Manage-



ment, Procurement and Law 160 Issue MP1.

[FN51]. At para. 577, p. 146 (CLR).

[FN52]. Prof I.N.D. Wallace Q.C. at 86.

[FN53]. See Brian Eggleston, Liquidated Damages and Extensions of Time in ConstructionContracts, 3d ed (Oxford: Wiley-Blackwell, 2009), p. 27. Such terms can, of course, co-existwith time being of the essence, if so provided in the contract: Peak Construction (Liverpool)Ltd. v. McKinney Foundations Ltd.

[FN54]. [1950] 1 K.B. 616 (C.A.), cited by Eggleston, p. 26.


[FN56]. (1995), 11 BCL 202.

[FN57]. Commented on by Prof. I.N.D. Wallace, Q.C., “Prevention and Liquidated Damages”,p. 84.

[FN58]. Italicized terms are defined in the contract form.

[FN59]. Similar provisions are contained in other standard form Canadian construction con-tracts, such as CCDC3-1998 Cost Plus Contract (with guaranteed maximum price option)form, CCA1-Stipulated Price Subcontract, and CCA17-1996 Stipulated Price Contract forTrade Contractors on Construction Management Projects.

[FN60]. Gaymark, above.

[FN61]. Redbrooke Estate Ltd. c. E.G.M. Cape & Co. (1956) Ltd. (30 décembre 1974), noC.S. Montréal 739 330, [1974] J.Q. No. 2 (S.C.); Industries Falmec inc. c. Société deCogénération de St-Félicien, société en commandite/St-Félicien Cogeneration Ltd. Partner-ship, 2005 QCCA 441, [2005] R.D.I. 248; Développement Takana inc. c. Québec (Corp.d'hébergement), 2009 QCCS 3787 (S.C.).

[FN62]. Redbrooke, at para. 214, citing the reasons of Davey J.A. of the British ColumbiaCourt of Appeal Perini and the English case Wells v. Army & Navy; St-Felicien, above.

[FN63]. Kott, Olivier et al, eds, La Construction au Québec: Perspectives Juridiques(Montreal: Wilson & Lafleur, 1998) 387.

[FN64]. (2007), 23 Const. L.J. No. 8 592-605.

[FN65]. The authors specifically refer to Art. 1147 of the French Civil Code. There is no exactequivalent in Quebec but Articles 6 and 1375 would seem to provide similar grounds to sup-port prevention arguments, if such support is necessary. These Articles were not referred to inthe Quebec cases cited above; some were, of course, decided under the former Civil Code ofLower Canada, which had no explicitly articulated good faith requirement for contractual per-formance.



[FN66]. See Dilcon, in which the B.C. Supreme Court applied the well established principlethat there is no generally-implied duty of good faith in contract performance at common law(67-70, paras. 168-179), and at the same time held the prevention principle as expressed in theHawl-Mac case was applicable (145-146, paras. 573-579).2011 J. Can. C. Construction Law. 71

END OF DOCUMENT

