CANADA Law and Practice Contributed by: Rachel V Hutton, Michael L Dyck, Mario Paura and Miguel Manzano, Stikeman Elliott LLP
sue for rent due until such termination, or for damages accrued up to the date of termina - tion for previous breaches; • to give notice to the tenant that the landlord wishes to re-let the premises on the tenant’s account and repossess the property on that basis, and sue for shortfall in rent where it occurs; and • to terminate the lease on notice and repos - sess the property while reserving the right to sue for prospective damages for the unex - pired term of the lease (including unpaid future rent). The exercise of the remedies available to the landlord is subject to the principles of com - mon law. The primary restriction on the landlord is its duty to mitigate damages. In addition to common-law requirements, legislation in some jurisdictions also restricts how a landlord can exercise its right to distrain, prescribes notice requirements, and may provide a tenant relief from forfeiture. A landlord will often hold a security deposit to secure future payment and performance of obli - gations under a lease. This is typically provided as cash but may also be a letter of credit. 7. Construction 7.1 Common Structures Used to Price Construction Projects Canadian construction contracts generally adopt one or more of the following structures: • fixed price – a predetermined, stipulated or lump-sum price; • cost-plus – based on the contractor’s actual costs, plus a percentage or fixed fee applied
to actual costs, potentially subject to an over - all guaranteed maximum price; or • unit price – a predetermined fixed amount for each specified unit of work performed, which is multiplied by the measured quantity of work performed for each specified unit. 7.2 Assigning Responsibility for the Design and Construction of a Project The allocation of responsibility for design and construction of Canadian construction projects is determined by the project delivery model, and the form of construction contract used by the owner. Design-Build The owner engages a single design-builder, who assumes overall responsibility for the design and construction of the project, including price, schedule and performance. The owner gener - ally retains the risks associated with changes or unexpected conditions. Should the owner enter into separate contracts with the designer and the general contractor, the owner will assume the risk associated with co-ordination and con - flict issues arising between those counterparties. Owner and Multiple Contractors The owner enters into separate contracts with different contractors for each portion of the work to be completed. This assigns the risk evenly among the contractors and creates a direct contractual relationship with each of them. The responsibility and risk associated with co- ordination and conflicts remains with the owner. Accordingly, an owner may engage a construc - tion manager to enter into direct contracts with the contractors on the owner’s behalf to help to manage or reallocate such risks.
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