Did you know that progress certificates issued by owner-appointed consultants such as architects or engineers won't always be binding on the owner? In recent years, Canadian courts have been moving away from finding consultant certificates as binding and have been allowing owners more latitude to dispute the consultant's findings or set-off damages owed by the contractor against amounts already certified for payment by the consultant.
Notwithstanding this trend, the courts have been clear that specific contractual language can alter this relationship and ensure that a consultant's decision will be binding on both parties should this be what they desire. As a result, it is important that when establishing a contractual relationship between an owner and contractor the rights and powers of the consultant are clearly defined.
Brownlee LLP has significant experience in these matters and can assist in ensuring this relationship is clearly defined. This can help ensure there are no surprises down the road when, for example, a contractor presents a progress certificate but the owner refuses to pay due to an alleged deficiency in the contractor's performance of the contract.
In conclusion, both owners and contractors should be aware that the recent trend in Canadian jurisprudence is to move away from holding that consultant's certificates are binding on the parties, especially with respect to progress certificates and progress payments.