Disagreements and claims relating to changes in the work can lead to significant disputes under winter maintenance contracts. These disagreements and claims can arise in many different ways. Accordingly, managing the risk is something contractors should think about from the time they start negotiations through to long after they have completed their work and services.
As a starting point, many disputes over “changes” arise because the original scope of work is not clear: the client says the disputed work is included while the contractor says it would have required an “extra.” Where the original scope of work is not properly detailed, the dispute can go either way. Also, any ambiguity in a contract will generally be interpreted against the person who drafted it, pursuant to the legal doctrine of contra proferentum. If the contractor has drafted the contract and presented it to his client, any vagueness or ambiguity will generally be interpreted in favour of the client, so long as the client’s proposed interpretation is not unreasonable.
It is accordingly important for contractors, to the extent possible, to make sure that their contracts are sufficiently clear and detailed to leave no question about what the contractor is, and isn’t, to do for his money. This is particularly true in relation to who decides when, where and how much ice melting products are to be applied in any particular circumstance.
Specify extras
Where ice melting products are to be an “extra,” the client generally “makes the call” as to when and how they are to be applied. This should be made clear in the contract, which should include terms and conditions which confirm that the client retains the sole responsibility to monitor the weather conditions in the vicinity of the premises and to determine if and when a request for ice melting products should be made.
The client can choose to specify, in advance, that the contractor will apply ice melting products only in certain circumstances, for example when the contractor attends to clear snow. Also, the contract can treat other requests for the application of ice melting products as an extra under the contract, on a request-by-request basis. (Once a request is made, the contractor should have discretion to put down as much of the ice melting product or as he or she believes is appropriate).
The request process should be outlined in the contract and should require that the request be submitted in writing, prior to the work being performed. While in previous times this might not always have been practical, in this day and age e-mail and text technology should be available to meet this requirement. Requests should also be clear and unambiguous. Utilizing a pre-arranged format for the form of the request is advisable.
Timing is everything
The contract should generally only require the contractor to respond to such a request within a reasonable period of time. The contract should not guarantee or imply that the contractor respond within a specified time frame unless the contractor is being paid to be “on-call” in that regard. This is because the contractor’s response time will generally depend on the timing of the request and the volume of work the contractor is committed to elsewhere. Contractors who are concerned that they may not be able to meet the client’s needs upon such a request should immediately advise the client (preferably in writing) that he cannot respond reasonably until a certain time.
Often, clients who are concerned about the cost of winter maintenance services will approach the contractor with a request to change the terms of the contract mid-stream, to only have ice melting products applied in particular circumstances. When this occurs, the contractor should only agree to such a change if the client agrees to assume full responsibility to decide when and if the ice melting products should be applied. The contract should then be formally amended to impose this risk on the client. Also, the contractor should be aware that, generally speaking, he will be entitled to the lost profits he would have earned had the services not being removed from the contract.
Lastly, in relation to extra work, and as is the case with all winter maintenance services, the contractor must prepare and engage a reasonable system to meet his contractual obligations in this regard and keep good records to be able to prove, if necessary, that his contractual obligations were met.
Robert Kennaley is a former landscape contractor who now practices construction law in Toronto. He can be reached at (416) 368-2522 or kennaley@mclauchlin.ca. This material is for information purposes and is not intended to provide legal advice in relation to any particular fact situation. Readers who have concerns about any particular circumstance are encouraged to seek independent legal advice in that regard.
