Construction North 2018 - 16

LEGAL REPORT

Hiring a Lawyer -

Choosing a
Tombstone

By Dan Leduc
Norton Rose Fulbright LLP

H

iring a lawyer is not usually
at the top of someone's "To Do
List," but there may come a time
when you, as a contractor, have no other
choice. It is similar to the excitement
of choosing a tombstone. Not always
inevitable and not always fun. It's an
expensive process, and you do yourself
no favours by loading your lawyer with
basic project records and organization
issues, or not giving your lawyer the
right information in the right order. Here
are my suggestions to keep things running smoothly and a little less pricey:

1. Choosing a lawyer
This topic is sensitive. You will want
to revert to a friend or other lawyer with
whom you may have had a prior personal
or professional relationship. As good as
you might feel about him or her however,
if they have limited construction experience, you may ultimately be paying more
for advice and potentially missing out on
good advice. Resorting to a lawyer who
specializes in construction law will avert
this risk. They can be more expensive in
terms of hourly rates, but likely end up
charging less hours given that they have
a much, much smaller learning curve on
construction law matters and claims.
With technology, you should not feel
compelled to hire someone local. Email
16 * www.nocabuild.com

and video technology allow
client meetings to take place
using technology which can be
easier and less expensive! On technology, if your lawyer is not using technology, then you can expect your bills
to be higher.
Last, you can actually save money by
referring a matter to your lawyer prior
to the dispute or claim arising. A dollar
spent having the lawyer review your
contract, for example, will typically save
you $20 afterwards. The temptation to
wait however is clearly human, but
should be avoided.

2. Chronology of key events
and key documents
What you consider to be key events
and what your lawyer considers key
may be two different things. Have
a chronology document set out in
a spreadsheet format (e.g. Excel) in
which you have entered the date of a
key event and a short summary about
what happened.
When there's a document that applies
to this event, be sure to reference it, and
provide that reference document to your
lawyer. This is an excellent starting point
for setting out the background facts.
My starting point, for just about
every construction claim or issue I have
tackled, is the contract(s) in question.

3. Lien claims
Typically, the registration of a claim
for lien requires a quick response from
your lawyer. Provide a copy of the contract giving rise to your claim plus:
* A full state of accounts (including copies of the outstanding invoices)
* A description of the work performed
* Your start and end dates for the work,
and, the publication date of the certificate of substantial performance.

©ISTOCK/RICHLEGG

You should also identify the property on which you did the work with
its municipal address. You can use a
location from Google Maps or similar as
a best practice.

4. Damages
Almost every construction claim will
involve a claim for damages. Essentially,
there are two parts to any lawsuit:
liability and damages.
If you have not suffered any damages -
whether out-of-pocket expenses or costs
that were unanticipated, or actual liquidated damages for monies owing pursuant to a contract - or have no way
to otherwise prove your damages, it
becomes an uphill battle.
After reviewing the contract, some
lawyers (like me) will focus on the
damages - the amount being claimed
by you and the potential amount being
claimed against you. If we cannot find any
damages, then there is likely no claim. It
is key to link the alleged breaches to your
damages. That is always essential and
there is no room for assumption.
Have a statement of account available,
as well as a summary of your project
costing records, to show where you have
actually incurred damages. Those will
go a long way toward helping your lawyer calculate potential damages.
❑
Dan Leduc exclusively practices
construction law at Norton Rose
Fulbright LLP and may be reached at
dan.leduc@nortonrosefulbright.com or
613-867-7171. That is his cell number.
You now have his cell number.


http://www.nocabuild.com

Table of Contents for the Digital Edition of Construction North 2018

Executive Director’s Report
President’s Report
Northern Ontario Project Attracts International Attention
70 Years and Counting
Arbitrator Supports Employer in Medical Marijuana Case
Hiring a Lawyer – Choosing a Tombstone
NOCA Celebrates 70 Years
Not Just for Guys: Industry Wants to See More Women Enter Construction
COCA Update
Education Report
Membership Report
Entertainment Report
2018 Suppliers’ Guide
Index to Advertisers
Construction North 2018 - Intro
Construction North 2018 - cover1
Construction North 2018 - cover2
Construction North 2018 - 3
Construction North 2018 - 4
Construction North 2018 - 5
Construction North 2018 - 6
Construction North 2018 - Executive Director’s Report
Construction North 2018 - 8
Construction North 2018 - President’s Report
Construction North 2018 - Northern Ontario Project Attracts International Attention
Construction North 2018 - 11
Construction North 2018 - 70 Years and Counting
Construction North 2018 - 13
Construction North 2018 - 14
Construction North 2018 - Arbitrator Supports Employer in Medical Marijuana Case
Construction North 2018 - Hiring a Lawyer – Choosing a Tombstone
Construction North 2018 - NOCA Celebrates 70 Years
Construction North 2018 - Not Just for Guys: Industry Wants to See More Women Enter Construction
Construction North 2018 - 19
Construction North 2018 - COCA Update
Construction North 2018 - 21
Construction North 2018 - Education Report
Construction North 2018 - Membership Report
Construction North 2018 - Entertainment Report
Construction North 2018 - 25
Construction North 2018 - 26
Construction North 2018 - 27
Construction North 2018 - 2018 Suppliers’ Guide
Construction North 2018 - Index to Advertisers
Construction North 2018 - 30
Construction North 2018 - cover3
Construction North 2018 - cover4
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