What Can a General Contractor Do to Be Relieved of His Duty to Advise?

He has a duty to inform the client of any additional costs resulting from the performance of additional work, as well as any difficulties encountered in carrying out the work. He must also determine the scope of his undertaking, plan how the work will be performed, assess any issues that may arise and inform his client accordingly.

In addition, where materials are supplied by the client, the general contractor must inform the client if the materials are unsuitable for their intended use or if they have an apparent defect or a latent defect of which the contractor ought to be aware. The contractor therefore has an obligation to verify the quality of the materials used. These obligations apply, in particular, to soil conditions.

How far does the general contractor’s duty to advise extend?

The general contractor’s duty to advise also gives rise to an obligation to identify and report irregularities in the plans and professional reports, as discussed in the article by our colleagues Jean-Sébastien Beaulieu and Raphaël Côté. However, the general contractor’s responsibility in this regard is limited to a general review. To protect against a potential claim and preserve the ability to hold professionals responsible for any errors or deficiencies in their plans and reports, the general contractor must carry out certain verifications, but is not required to redo the work of the architect, engineer or professional technologist.

The general contractor’s duty to advise also comes into play when seeking to establish that a construction defect resulted from the owner’s decisions. To rely on this ground of exoneration, the general contractor must demonstrate that the owner was duly informed of the consequences that the owner’s choices would have on the project.

How can a general contractor be relieved of liability?

Another question that may arise is whether a general contractor can be relieved of liability by demonstrating that the contractor fulfilled its duty to advise the architect rather than the owner. When faced with a difficulty on a construction site, can the general contractor simply notify the architect, or must the contractor discharge its duty to advise directly with the owner?

In a 2021 decision of the Quebec Court of Appeal, the Court dismissed an architect’s appeal challenging his personal liability for cost overruns relating to a building he had designed and for which he had supervised the work. The trial focused largely on the presence of trees that were ultimately cut down and that, according to the evidence, should have been removed at the outset of the work in order to avoid significant construction cost overruns and the flooding of an access road.

At trial, the owner sought to hold the general contractor and the architect solidarily liable for the cost overruns associated with the presence of the trees. However, the Superior Court found that only the architect was liable for the cost overruns. The Court of Appeal upheld that decision.

The evidence in the case showed that the owner wished to preserve as many trees as possible in order to maintain the natural character of the property. In defending against the claim for cost overruns, the architect argued that the owner had made an informed decision not to have the trees removed. However, the evidence at trial established that the owner had never insisted that as many trees as possible be preserved. The architect and the general contractor were therefore required to oppose the preservation of the trees that were causing the problems.

In this respect, the general contractor testified that he had advised the architect that construction costs would increase if the trees were preserved. Both the Superior Court and the Court of Appeal held that the general contractor’s notice to the architect was sufficient to relieve the contractor of liability for the cost overruns.

This conclusion, however, was based on the particular facts of the case. The owner had no construction knowledge and had followed all of the architect’s recommendations. The evidence also showed that the architect had supervised the work as a whole. Although the agreement between the owner and the architect provided for only partial supervision of the work, the facts established that the architect had in fact supervised the entire project. The general contractor and one of the subcontractors had also described the architect as the person in charge of the work and the only person making decisions on the construction site.

To be relieved of liability for the cost overruns associated with the presence of trees near the building, the general contractor introduced evidence that he had advised the architect that the trees should be removed. Because the architect was acting as the person in charge of the project, the general contractor left it to the architect to inform the owner of the difficulties associated with the presence of the trees. The Superior Court concluded that the general contractor’s notice to the architect was sufficient to discharge the contractor’s duty to advise. The Court of Appeal upheld the decision.

For any questions regarding a general contractor’s liability in the performance of construction work, please contact our construction litigation team, who will be pleased to advise you.