RC124 MayJun 2026 - Magazine - Page 33
LEGAL
FOR THE RECORD
Building a winning evidentiary
record for delay claims
by Michael Valo
OMPREHENSIVE, CONTEMPORANEOUS DOCUMENTARY evidence can make or
break a delay claim. Schedules alone are not enough. To be reliable,
they must be veri昀椀able: supported by logs, reports, correspondence, cost records, and other project documents that corroborate
what the schedules show.
Forensic schedule analysis is powerful in demonstrating the
impact of changes to sequence, logic, or activity durations. But proving
why those impacts occurred requires evidence beyond the schedule itself.
Experts reviewing delay claims examine the full documentary
record to determine when delays occurred, what caused them, and
who bears responsibility.
The strength of any delay claim ultimately rests on the quality,
completeness, and credibility of the project record.
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Documentation as insurance
Maintaining detailed project records is time-consuming and
resource intensive. On large infrastructure projects, entire project
controls teams may be dedicated to creating and maintaining logs,
reports, meeting minutes, and schedule updates. Smaller projects may not
have that luxury, but basic documentation remains critical.
For smaller contractors in particular, disciplined recordkeeping
should be viewed as insurance against future disputes. Well-maintained
records not only support claims, they also facilitate dispute avoidance.
A documented project with regularly updated schedules provides a
compelling foundation for contemporaneous extension-of-time (EOT)
requests and informed decision-making.
Objectivity is equally important. Records should be factual and neutral.
Meeting minutes, reports, and even emails should capture what was
said, heard, and observed, not subjective commentary. Credibility, once
compromised, is di昀케cult to restore.
Projects that invest in disciplined documentation
are better positioned not only to succeed in
disputes, but to avoid them altogether.
Preserve documents in native format
Where possible, electronic records should be preserved in their native
formats:
• Scheduling 昀椀les in Microsoft Project or Primavera P6
• Excel 昀椀les in .xls or .xlsx format
• Emails in their original format
• Photos and videos as unedited image or video 昀椀les
Native formats preserve metadata, including creation and modi昀椀cation
dates, which can establish contemporaneity. They also allow experts to
review logic links, constraints, formulas, and data structures that are
invisible in PDF versions.
PDFs may be convenient for circulation, but they are facsimiles. The
underlying native data often carries the evidentiary weight.
The Society of Construction Law’s Delay and Disruption Protocol
provides a comprehensive list of typical record types. The categories
below highlight the most common and impactful.
Michael Valo
is a Partner with
Glaholt Bowles LLP.
RENEWCANADA.NET
Experts reviewing delay claims examine the full
documentary record to determine when delays occurred,
what caused them, and who bears responsibility.
MAY/JUNE 2026 – RENEW CANADA 33
