Thomas G. Heintzman, O.C., Q.C., FCIArb

Construction Law Canada

This website is intended to encourage discussion about recent developments in construction law in Canada.

The commentary in this website will relate to legislation and case law. Each item for discussion will be set out individually. The item will have a short description of the subject matter. Then, a lengthier discussion of the item will follow. The discussion is solely a matter of my personal view and opinion and does not constitute legal advice.

The discussion will generally follow the subjects addressed in my book: Heintzman & Goldsmith on Canadian Building Contracts (5th ed. Carswell).  Reference to that text will be made from time to time as “CBC”, that is Canadian Building Contracts. However, a broader range of subjects will be addressed in this site than those addressed in CBC.

I welcome any views about the commentary in this website and hope that a dialogue will develop about the distinctive aspects of construction law in Canada.

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Can Conduct Relating To A Mediation Lead To A Higher Costs Award?

In Ross v. Bacchus, the Ontario Court of Appeal recently set aside an order of the trial judge awarding a higher level of costs because of the defendant’s conduct at the mediation. This decision emphasizes that, absent proof of bad faith, courts will be reluctant, at least in Ontario, to impose costs awards relating to […]

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Are “Services” Lienable If They Relate To Something That Is Not An “Improvement”?

Whether something put on land is an “improvement” for the purposes of construction and builders’ liens can be a difficult question of fact and law. Usually the dispute revolves around the degree of attachment of the “thing” to the land and the permanence of the attachment. Then, add to that dispute the fact that “services” […]

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Interpretation Saves Contract From Penalty Doctrine

Contract law contains a fundamental rule: penalty clauses are prohibited and liquidated damage clauses are permitted. But in its recent decision in Ottawa Community Housing Corp. V. Foustanellas, the Ontario Court of Appeal held that there is another way to look at this rule. The clause is valid if, properly interpreted, the clause delays, but […]

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Damage To The Rebar And The Deflection Of Floor Slabs Are Covered Under Builders’ Risk Policy: B.C. Court Of Appeal

The extent of coverage under Builders’ Risk policies is a matter of continuing debate in Canada. Insurers try to draft policies which do not cover the poor workmanship of contractors, and contractors continue to insist that they have bought and paid for insurance which covers damage to the work in progress. And so the debate […]

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Trust Fund Obligations Continue After A Lien Bond Is Filed: Supreme Court Of Canada

The Supreme Court of Canada recently released its highly anticipated decision in Stuart Olson Dominion Construction Ltd. v. Structal Heavy Steel. The court has held that the trust fund obligations on a construction project did not terminate when the contractor filed a bond in respect of the subcontractor’s lien. This decision is of fundamental importance […]

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Foreign Judgment Is Enforceable Without Proof Of Connection To Canada: Supreme Court Of Canada

In its recent decision in Chevron Corp. v. Yaiguaje, the Supreme Court of Canada has held that a foreign judgment may be enforced in Canada without the claimant demonstrating that the claim or the judgment debtor has any connection to Canada. Rather, it is the claim’s connection to the jurisdiction where the judgment was rendered […]

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Who Is Entitled To The Holdback Funds: The Contractor’s Trustee In Bankruptcy Or The Payment Bond Surety?

When a contractor goes bankrupt and the bonding company pays the subcontractors, who is entitled to the holdback funds in the owner’s hands: the contractor’s trustee in bankruptcy or the bonding company? In Iona Contractors Ltd. (Receiver of) v. Guarantee Co. of North America, the Alberta Court of Appeal recently held that the bonding company […]

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Review Of Arbitral Awards: Where Is Sattva Taking Us?

The decision of the Supreme Court of Canada in Creston Moly Corp. v. Sattva Capital Corp., 2014 SCC 53 (Sattva) is a seminal decision in the review of arbitral awards. That decision apparently set a wide net of protection around arbitral awards. It did so by ruling that an arbitral award interpreting a contract should usually be […]

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Can A Change To A Construction Contract Be Set Aside For Duress Or Coercion?

Building projects often give rise to heated discussions. When a change order is made in that sort of situation, can one party later say that the change order was made under duress or coercion? The Newfoundland Court of Appeal said Yes in the recent decision in Hickey’s Building Supplies Ltd. v. Sheppard. Background Facts This […]

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