{"id":41920,"date":"2025-11-26T15:17:42","date_gmt":"2025-11-26T20:17:42","guid":{"rendered":"https:\/\/www.millerthomson.com\/?p=41920"},"modified":"2025-11-26T15:17:44","modified_gmt":"2025-11-26T20:17:44","slug":"concurrent-delays-in-construction-projects-how-canadian-courts-decide-who-pays","status":"publish","type":"post","link":"https:\/\/www.millerthomson.com\/en\/insights\/construction-and-infrastructure-law\/concurrent-delays-in-construction-projects-how-canadian-courts-decide-who-pays\/","title":{"rendered":"Concurrent delays in construction projects: How Canadian courts decide who pays"},"content":{"rendered":"\n

When construction projects fall behind schedule, the reason is rarely simple. Often, multiple parties contribute to delays that overlap or occur at the same time, creating what is known as concurrent delay. These situations can have serious cost and liability implications for both contractors and owners.<\/p>\n\n\n\n

This communique explores the leading Canadian case and the basic principles governing the allocation of concurrent delay between the parties responsible for that delay, as well as key takeaways to consider should a future construction project experience such an issue.<\/p>\n\n\n\n

What is a concurrent delay in construction projects?<\/h2>\n\n\n\n

Concurrent delay occurs when two or more independent events, attributable to different parties, delay the completion of a project while either occurring at the same time or overlapping. These delays may involve separate activities, but each affects the project\u2019s critical path.<\/p>\n\n\n\n

How did the Court approach concurrent delay in Schindler<\/em>?<\/h2>\n\n\n\n

The leading case on the apportionment of concurrent delay in Canada is the 2021 Ontario Superior Court of Justice (the \u201cCourt<\/strong>\u201d) decision in Schindler Elevator Corporation v Walsh Construction Company of Canada<\/em><\/a> (\u201cSchindler<\/em><\/strong>\u201d).[1]<\/a> In this case, <\/em>the prime contractor, Walsh Construction\/Bondfield Partnership (\u201cWBP<\/strong>\u201d), hired Schindler Elevator Corporation (\u201cSEC<\/strong>\u201d) to supply and install ten elevators for a hospital construction project. The project experienced delay, and WBP commenced an action to recover its delay costs. WBP asserted that SEC, along with other subcontractors, had caused concurrent critical path delays, and therefore SEC should be liable for a proportionate share of those costs.<\/p>\n\n\n\n

At trial, both sides tendered critical path method (\u201cCPM<\/strong>\u201d) schedule analyses from experts regarding responsibility for the critical path delay experienced on the project.  Notably, the Court did not give weight to either analysis in arriving at its decision, having found issues with the impartiality and reliability of both.[2]<\/a><\/p>\n\n\n\n

In order to meet its evidentiary onus in the absence of a reliable CPM schedule analysis, WBP, as the party claiming delay damages, had to demonstrate the impact of SEC\u2019s delayed work on subsequent work and sequencing.[3]<\/a> WBP did not meet this onus, largely because the actual critical path of the project had not been identified, including which activities were on it, who was responsible for those activities, and whether any of them were delayed.[4]<\/a>  This made it difficult for the Court to determine whether any critical path activities following SEC\u2019s elevator work were impacted by SEC\u2019s delays such that SEC could be said to have materially contributed to the overall project delay.[5]<\/a><\/p>\n\n\n\n

What legal principles did the Court adopt on concurrent delay?<\/h2>\n\n\n\n

Ultimately, the Court found that SEC completed the elevators late but did not cause or materially contribute to any critical path delay to the overall project, largely due to the absence of reliable expert analysis or clear evidence of causation.[6]<\/a><\/p>\n\n\n\n

In arriving at its decision, the Court made two important findings with respect to the analysis of concurrent delay: <\/p>\n\n\n

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  1. Definition of concurrent delay:<\/strong> The Court adopted the definition of concurrent delay put forward by Glenn Grenier in his 2006 article titled \u201cEvaluating Concurrent Delay \u2013 Unscrambling The Egg,\u201d namely that concurrent delay exists where the delays to co-critical and co-controlling activities overlap.[7]<\/a> In making this finding, the Court rejected a stricter definition put forward by SEC\u2019s expert, which required that the delays be \u201cparallel in time and identical in duration\u201d to be considered concurrent.[8]<\/a><\/li>\n
  2. Causation standard:<\/strong> The Court found that the assessment of concurrent delay on a complex construction project \u201cwill often give rise to a material contribution assessment for causation,\u201d rather than a traditional \u201cbut-for\u201d analysis.[9]<\/a> Although the \u201cbut-for\u201d test remains the primary test for determining causation, the \u201cmaterial contribution\u201d test could properly be applied where:<\/li>\n<\/ol>\n