TERMS AND CONDITIONS

TERMS AND CONDITIONS - CONTRACTING CONSTRUCTOR SERVICES IN SUPPORT OF OUR CONSULTING WORK

These Terms and Conditions (the "Conditions") set out the standard terms under which Capacity Engineering Limited ("CEL" or the "Consultant") engages contractors to perform minor construction works ("Minor Works") in support of consulting engineering projects. Award of a Minor Works contract shall not constitute an award of any other or future work. The specific scope of work, contract price, schedule, and any project-specific requirements (including the location, hereafter the “Place of the Work”) shall be as stated in the communication from CEL (the "Engagement Communication") from which these Conditions have been referenced.

1. APPLICATION AND CONTRACT DOCUMENTS

These Conditions, together with the Engagement Communication and any subsequent Change Orders (CO) agreed to by both parties, form the Contract. In the event of any conflict, the Engagement Communication and signed COs prevail over these Conditions. No other terms, including any standard terms of the Contractor, Purchase Order, or any other instrument(s) apply unless expressly agreed in writing.

2. SCOPE OF WORK & MAKE GOOD

The Contractor shall perform the Minor Works strictly as described in the Engagement Communication. The work is typically exploratory and minor in nature (for example exploratory openings, excavations, drain and pipe camera inspections, temporary supports, and reinstatement). The Contractor acknowledges that actual site conditions may differ from preliminary descriptions. The Contractor shall not perform work outside the described scope without a signed Change Order or CEL's prior written authorization to proceed on a time-and-materials basis.

Upon Substantial Completion of the Work, or upon written direction from CEL to close or make good any portion of the Work, the Contractor shall, at its sole cost and expense and within five (5) business days (or such other period as CEL may direct in writing):

(a) restore the Place of the Work and all affected areas to a condition equal to or better than the condition existing immediately prior to the Contractor’s mobilization, including repair or replacement of all disturbed finishes, surfaces, and elements, to the reasonable satisfaction of CEL;

(b) remove all equipment, materials, debris, temporary works, and waste, and fully demobilize from the site; and

(c) provide CEL with clear, dated photographic records (with sufficient context and detail to permit verification) showing the condition of the affected areas immediately prior to mobilization and immediately following completion of reinstatement and demobilization.
The Contractor shall, prior to commencing any work that will disturb finishes or the site, provide CEL with pre-mobilization photographic records of the relevant areas.

If the Contractor fails to complete satisfactory reinstatement within the required time, CEL may, without prejudice to any other rights or remedies (including under the Construction Act), have the reinstatement work performed by others and recover all resulting costs (including a reasonable administration fee) from the Contractor by set-off against any amounts owing to the Contractor or as a debt due and payable on demand. This obligation survives Substantial Completion, final payment, and termination or expiration of the Contract.

3. CONTRACTOR OBLIGATIONS AND STANDARD OF CARE

The Contractor shall perform the Work in a good, workmanlike, and professional manner using competent and, where required, licensed personnel and supervisors. The Contractor shall supply all labour, materials, equipment, tools, temporary works, and incidentals unless the Engagement Communication states otherwise. The Contractor shall comply with all applicable laws, codes, and regulations, coordinate with CEL and site occupants to minimize disruption, keep the site tidy and secure, and promptly notify CEL in writing of any differing site conditions, discrepancies, or circumstances that may affect scope, price, schedule, or safety.


4. SITE SAFETY AND CONSTRUCTOR RESPONSIBILITY

The Contractor is and remains solely responsible for all health and safety at the Place of the Work. The Contractor shall be the "Constructor" under the Occupational Health and Safety Act (Ontario) and its regulations for the Work and the Place of the Work, and shall discharge all constructor duties including hazard assessment, safety planning, training, supervision, notifications to the Ministry of Labour, Immigration, Training and Skills Development (aka Ministry of Labour, hereafter MOL), and maintenance of required records. Where a Notice of Project is required under O. Reg. 213/91, the Contractor (as Constructor) shall file it with the MOL before commencing work. CEL and the Client do not assume and are not deemed to have assumed any constructor, employer, or supervisor role or liability under OHSA. CEL's presence for coordination or technical observation does not relieve the Contractor of these responsibilities or create any safety duty on CEL's part. The Contractor shall provide evidence of WSIB coverage and required training upon request and shall immediately notify CEL of any safety incident (including any near miss), AHJ Inspector visit, MOL Officer visit, or any MOL order(s).


5. CHANGES AND CHANGE ORDERS

No change to the scope, price, or schedule is binding unless documented in a written Change Order signed by authorized representatives of both parties, or CEL provides written authorization to proceed on a time-and-materials basis pending final pricing. If the Contractor believes any direction, site condition, or circumstance requires a change, it shall immediately notify CEL in writing with particulars before proceeding with affected work. CEL may issue a written direction or request for proposal for a change; the Contractor shall respond in writing within five (5) business days (or sooner if safety or urgency requires) with a breakdown of price and schedule impact. The parties shall negotiate in good faith to execute a Change Order by email (ideally a product of a discussion in person or electronically, captured by an email from the CEL staff assigned). Where these Conditions are silent on change procedures, the relevant provisions of the General Conditions of CCDC 2 “Stipulated Price Contract” (latest edition) may be referenced as a guide, provided this Contract prevails in case of conflict.


6. CONTRACT PRICE AND PAYMENT

The Contract Price is as stated in the Engagement Communication and is firm unless adjusted by Change Order. Prices exclude HST, which shall be shown separately. The Contractor is responsible for all taxes, WSIB premiums, and other charges except recoverable HST. The Contractor shall submit invoices with supporting documentation as reasonably requested by CEL. CEL shall certify satisfactory invoices within ten (10) business days. Payment is net thirty (30) days from certification, subject to Construction Act holdback requirements. Holdback release follows the Act upon Substantial Completion, expiry of lien periods, and provision of satisfactory statutory declarations and clearance certificates. CEL may set off amounts owed against payments due. Interest on overdue amounts accrues at the rate under the Construction Act or prime plus 2%.


7. SCHEDULE AND DELAYS

The Contractor shall commence and complete the Work by the dates or within the duration stated in the Engagement Communication, subject to extensions for excusable delays. Time is of the essence for any expressly identified critical dates. The Contractor shall give CEL written notice of any delaying event within five (5) business days of its occurrence or discovery. Extensions shall be granted for delays beyond the Contractor's reasonable control (including differing site conditions, access restrictions, or CEL/Client delays), provided timely notice is given. No delay damages apply unless caused by CEL's or the Client's negligent act or omission and proper notice was provided.


8. CONDUCT, WORKING HOURS, AND SITE PROPRIETY

The Contractor shall at all times conduct the Work with due regard for the property, occupants, residents, and nighbours of the Place of the Work.

The Contractor shall:

  • Carry out the Work only during the Working Days and hours specified in the Engagement Communication, and in compliance with all applicable municipal bylaws and regulations;
  • Refrain from creating unnecessary noise, dust, vibration, or odours;
  • Not commence noisy work until at least one hour after the start of the Working Day and shall cease noisy work at least one hour before the end of the Working Day, unless otherwise authorised in writing by CEL;
  • Take all reasonable steps to minimise disruption and inconvenience to occupants and neighbours; and
    Immediately remedy any complaint or issue raised by CEL regarding conduct or site propriety.

Failure to maintain an appropriate standard of conduct and site propriety may be treated as a material default under this Contract.


9. INSURANCE, WSIB, AND INDEMNIFICATION

The Contractor shall, at its own expense, maintain throughout the performance of the Work:

  • Commercial General Liability insurance with a limit of not less than Two Million Dollars ($2,000,000) per occurrence, covering bodily injury and property damage;
     
  • Workplace Safety and Insurance Board (WSIB) coverage, with a clearance certificate to be provided upon request; and

  • Automobile liability insurance (minimum $1,000,000) if vehicles are used on site.

The Contractor shall provide CEL with a certificate of insurance evidencing the above coverage prior to commencing the Work.
Additional Insured: Upon request by CEL, the Contractor shall cause CEL and the Client to be added as additional insureds on the Commercial General Liability policy, with coverage to be primary and non-contributory.
The Contractor shall indemnify and hold harmless CEL, the Client, and their respective officers, employees, and agents from and against all claims, losses, damages, costs, and expenses (including legal fees on a substantial indemnity basis) arising out of or resulting from the Contractor’s performance or failure to perform the Work, including negligence, safety breaches, defective work, liens, or injury to persons or property.

This indemnification survives completion or termination of the Contract.


10. SUBSTANTIAL COMPLETION (3-2-1 % Rule)


This contract is substantially performed when both of the following are met:


(a) The improvement (or a substantial part of it) is ready for use or is being used for the purposes intended; and
 
(b) The cost to complete the improvement or to correct any known defect is not more than:
3% of the first $1,000,000 of the contract price, 2% of the next $1,000,000, and 1% of the balance of the contract price.


Given these statutory requirements, the effective clause is “fit for purpose, with 3% of the works remaining or less”.

Substantial Completion shall be determined by CEL, acting reasonably. CEL shall not unreasonably withhold or delay

certification once the above criteria are met.


11. WARRANTIES

The Contractor warrants that materials shall be new (unless otherwise approved) and of good quality, and that the Work shall be free from defects in materials and workmanship for one (1) year from Substantial Completion (or longer if stated in the Engagement Communication or required by statute or manufacturer warranty). All manufacturer and supplier warranties shall be assigned or transferred to the Client, and the original documentation provided to CEL with the final invoice. Upon written notice of defect within the warranty period, the Contractor shall promptly return to site and rectify the defect and any consequential damage at its sole cost.


12. SUSPENSION AND TERMINATION

CEL may suspend the Work in whole or part by written notice. The Contractor shall stop work safely, secure the site, and mitigate costs; it shall be paid for work properly performed plus reasonable unavoidable demobilization costs. Either party may terminate for material default by written notice specifying the default and allowing a reasonable cure period (shorter for safety matters). Upon termination for Contractor default, CEL may complete the work by others at the Contractor's expense. Termination does not affect accrued rights, warranties, indemnities, or payment obligations for work performed.


13. DISPUTE RESOLUTION

The parties shall attempt in good faith to resolve disputes through direct discussion. If unresolved within fifteen (15) business days, either party may refer the matter to mediation under ADR Institute of Canada rules or equivalent. If mediation does not resolve the dispute within thirty (30) days, the matter shall be referred to arbitration with adjudicate.ca. Pending resolution, the Contractor shall continue the Work unless CEL directs otherwise or safety prevents it. Where these Conditions are silent, the dispute resolution provisions of CCDC 2 may be referenced as a guide.


14. GOVERNING LAW AND GENERAL PROVISIONS

These Conditions and the Contract are governed by the laws of the Province of Ontario and applicable federal laws of Canada. The parties agree to submit to the exclusive jurisdiction of the courts of Ontario. These Conditions, together with the Engagement Communication and agreed COs, constitute the entire agreement and supersede all prior negotiations and representations. No amendment or waiver is effective unless in writing and acknowledged by both parties. If any provision is held invalid or unenforceable, the remainder continues in force. The Contractor may not assign the Contract without CEL's prior written consent. Notices shall be in writing and deemed received on personal delivery, or two business days after mailing. This Contract may be executed in counterparts including by electronic signature, each of which is deemed an original.

NB: These Conditions are published by Capacity Engineering Limited and are subject to periodic update. The version in effect at the time of the Engagement Communication applies. For questions, contact CEL at the address or email referenced in the Engagement Communication.


TandC Contract last updated: June 19, 2026


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