Why Verbal Change Orders in Construction Often Turn into Legal Disputes

On many projects, changes happen fast and verbal change orders in construction get made without being written down. Sometimes a client asks for something extra, a site condition shifts, or a timeline needs adjusting. Often these changes are agreed to on the spot, with a handshake or a quick conversation on site. And while they can be enforceable in Canada, they are also one of the most common sources of construction disputes.

Most standard construction contracts require change orders to be in writing and signed before work begins. Courts often uphold these clauses, especially when the contract language is clear. However, Canadian courts have also recognized verbal change orders in certain situations. When there is clear intent, supporting documentation such as emails or site logs, and proof that the work was performed and accepted in good faith, a verbal agreement may still be binding. The problem is that proving all this later can be legally challenging and expensive.

This is where many projects start to unravel and litigation over construction disputes can prove challenging. 

Why Verbal Change Orders in Construction Are So Hard to Prove

When a dispute arises over a verbal change order, the contractor usually carries the burden of proof. That means showing that the change was requested, that it was authorized, that both sides agreed on the scope and value of the work, and that the work was actually performed. Without clear documentation, these disputes often turn into a “he said, she said” situation that is difficult to resolve without litigation.

Courts look for the basic elements of any contract, even when the agreement is verbal. There must be an offer, acceptance, something of value exchanged, and clear terms such as price and scope. If any of those elements are vague or disputed, the claim becomes much weaker.

Another common issue that causes disputes over verbal change orders in construction is authority. If the verbal instruction came from someone who appeared to have the authority to approve changes, such as a project manager or owner representative, the change may still be binding even if that person did not technically have authority under the contract. This concept, known as apparent authority, often becomes a key point of disagreement in legal disputes in construction.

Waiving Written Requirements Due to Owner Conduct or Behaviour

In some cases, courts have found that an owner waived the requirement for written change orders through their conduct. If an owner directly requested additional work, observed it being performed, and raised no objection, they may still be required to pay for it even without a signed document. While this can help contractors in certain situations, it is far from guaranteed and depends heavily on the specific facts of the case.

Owners frequently rely on no oral modification clauses to deny payment, arguing that the contract required all changes to be in writing. Canadian courts have been inconsistent in how strictly they enforce these clauses, which makes them a common flashpoint in construction litigation.

The Impact of Verbal Change Orders in Construction on Payment and Liens

In provinces like Ontario, oral or unsigned change orders can also affect lien rights. Under the Construction Act, change orders that are not formally signed may not be included in the original contract value when calculating Substantial Performance. This can delay or reduce lien claims and add another layer of complexity to an already tense payment dispute.

What starts as a simple request for extra work can quickly turn into a fight over money, timelines, and legal responsibility.

Why Early Legal Advice Is Important in Construction Disputes Over Verbal Change Orders

Because disputes over verbal change orders in construction are so fact-specific, consulting with a lawyer experienced in construction law early can make a significant difference. A lawyer can help assess whether a verbal change is enforceable, identify weaknesses in the evidence, and advise on the best path forward, whether that is negotiation, adjudication, or litigation.

Waiting too long often means losing leverage, missing statutory deadlines, or allowing positions to harden on both sides. Legal guidance can also help contractors and owners understand how provincial laws, such as prompt payment and adjudication provisions, may apply to their situation.

If you are currently facing a construction dispute over a verbal change order, the experienced litigation team at Gionet Fairley Wood LLP has a strong background in representing clients across Simcoe County, Muskoka, Grey Highlands, and surrounding areas. To discuss your situation and better understand your legal options in construction dispute litigation, contact us through our website, or call us today at 705-468-1088. 

***The information provided in this blog is for general informational purposes only and should not be construed as legal advice. If you have legal questions, we strongly advise you to contact us.