TLDR: A recent Ontario court decision has changed how delay damages get calculated on construction projects, putting more weight on contemporaneous documentation and less on after-the-fact expert reports. Contractors and owners alike should take a hard look at how they’re tracking schedule impacts right now.
Construction delays happen on almost every project of any size. What’s changed in Ontario is how courts are deciding who pays for them, and that shift matters a lot more than it might sound at first.
What the Ruling Actually Changed
For years, delay claims in Ontario leaned heavily on expert witnesses reconstructing a project’s timeline months or years after the fact. Lawyers would hire scheduling experts, those experts would build a critical path analysis from whatever records existed, and courts would weigh competing expert opinions against each other. It worked, sort of, but it also meant the outcome often depended on which side had the better expert rather than what actually happened on site.
The recent decision pushes back against that approach. The court made clear that contemporaneous records, the kind created while the delay was actually happening, carry significantly more weight than reconstructed timelines built later for litigation purposes. Daily logs, site meeting minutes, RFIs, and even informal emails between the contractor and owner’s representative are now the evidence that matters most.
Why Contemporaneous Records Matter More
Think about it from a judge’s perspective. An expert report written two years after a project wrapped up is, at best, an educated reconstruction. A site superintendent’s daily log entry from the actual day a delay occurred is a direct record. Courts have always preferred direct evidence over reconstructed evidence, but this ruling makes that preference explicit in the construction delay context specifically.
How This Affects General Contractors
If you’re a general contractor working on Ontario projects, this changes what you should be doing on site every single day, not just when a dispute shows up. Superintendents need to be logging delays as they happen, with enough detail that the record actually means something later. “Weather delay” isn’t enough. You need the specific trade affected, the hours or days lost, and ideally photos or other corroborating evidence tied to a date.
Daily Documentation Practices
A lot of contractors treat daily logs as a box-ticking exercise, something the super fills out because the contract requires it, not because anyone expects to actually read it later. That habit is going to cost people money under this new standard. Firms that already run tight documentation practices, using digital tools that timestamp entries and attach photos automatically, are going to have a real advantage if a dispute ends up in front of a judge.
What Owners Need to Know
Owners aren’t off the hook either. If you’re managing a project and your site representative isn’t keeping their own parallel record of delays, approvals, and communications, you’re relying entirely on the contractor’s version of events when a claim comes in. That’s not a great position to be in.
Impact on Subcontractors
Subcontractors sit in an interesting spot here. Delay claims often flow up the chain, from sub to general contractor to owner, and the same documentation standard applies at every level. A sub who can show, with dated records, exactly when and why their work was delayed is in a much stronger position to recover costs than one relying on a general sense of “the schedule kept slipping.”
Flow-Down Claims and Timing
Ontario’s Construction Act already has strict notice and timing requirements for claims, and this ruling adds another layer. Subs who wait until the end of a project to compile their delay story, rather than documenting it as it happens, may find that even a valid claim is harder to prove.
Practical Steps to Take Now
Review how your project teams are documenting delays today. If daily logs are thin or inconsistent, that’s worth fixing before the next dispute, not after. Consider whether your current software or process actually captures enough detail (who was affected, how long, and why) or whether it’s just a formality nobody looks at twice.
Preparing for Future Disputes
It’s also worth training site staff specifically on what makes a delay entry useful in litigation, since most superintendents were never taught that distinction. A short internal policy on documentation standards can save a lot of money down the line.
None of this means expert reports are going away entirely. But they’re no longer going to carry a dispute on their own, and the firms that adapt their documentation habits now will be in a much better spot if a delay claim ever lands on their desk.