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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Standard Form Contracts Are To Be Reviewed On A Standard Of Correctness: Supreme Court Of Canada

In, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co, 2016 SCC 37, the Supreme Court of Canada has held that the interpretation of a standard form contract is a matter of law alone, and not a matter of mixed facet and law. Accordingly, it is not sufficient for a judge to arrive at a reasonable […]

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Is The Charge Or Lien Against The Holdback Separate From The Lien Against The Land?

Summary In the recent decision in Brook Construction (2007) Inc. v. Blackwood Contractors Ltd, the Newfoundland and Labrador Court of Appeal held that the charge against the holdback under s.12(5) of the Newfoundland and Labrador Mechanics’ Lien Act (the NL Act) is the same as, and “parasitic” to, the lien against the land. Accordingly, since […]

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Is A “No Oral Variation” Clause In A Contract Binding?

Summary In MWB Business Exchange Centres Ltd v Rock Advertising Ltd [2016] EWCA Civ 553 and Globe Motors Inc v. TRW Lucas Varity Electric Steering Ltd. [2016] EWCA CIV 396, the English Court of Appeal has recently held that a contractual provision stating that the contract may only be amended by a written document signed […]

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Faulty Workmanship Exclusion In A Builders’ Risk Policy Excludes Only The Cost Of Re-Doing The Faulty Work: Supreme Court Of Canada

In Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, the Supreme Court of Canada has issued a definitive decision about the scope of the “faulty workmanship” exclusion in Builders’ Risk insurance policies. The Supreme Court has held that the clause only excludes coverage for the cost of re-doing the faulty work, and […]

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Lien For Work Done Before The Certificate Of Substantial Completion And Payment Of The Major Lien Fund Does Not Attach To The Minor Lien Fund

Summary In Chandos Construction Ltd. v. Twin Peaks Construction Ltd., a Master of the Alberta Court of Queen’s Bench has held that a lien for work done prior to the filing of a certificate of substantial completion and payment of the major lien fund does not attach to the minor lien fund. Background Chandos was […]

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Faulty Materials Or Workmanship Exclusion In Insurance Policy Does Not Exclude Resulting Damage: Ontario Court Of Appeal

Summary In its recent decision in Monk v. Farmers’ Mutual Insurance Company (Lindsay), the Ontario Court of Appeal has held that the exclusion for faulty materials or workmanship in an owner’s property insurance contract does not exclude the insured’s right to recover the resulting damage that the faulty materials or workmanship has caused. This is […]

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Contract Claim In Lien Action May Be Continued Even If Not Set Down Within Two Years: Saskatchewan Court Of Appeal

Summary In Livingston v. Span West Farms Ltd, the Saskatchewan Court of Appeal recently held that, when a lien claimant includes a claim for contract monies owing and remaining unpaid, but fails to set the lien action down for trial within the statutory period – so that the lien portion of the action must be […]

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Trust Fund Set Off Rights Are Not Available If No Trust Fund Is Maintained and No Lien Claim Is Made: Ontario Court Of Appeal

The Ontario Court of Appeal recently considered the scope of the right of set-off under the trust fund sections of the Ontario Construction Lien Act (the Act) and under equitable set-off under a contract claim. In Architectural Millwork & Door Installations Inc. v. Provincial Store Fixtures Ltd., the Court of Appeal held that the owner […]

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Multiplicity Of Litigation Is Not A Sufficient Reason To Stay An Arbitration

The Saskatchewan Court of Appeal has recently released an interesting decision dealing with arbitration and court proceedings arising from a construction contract. In Saskatchewan Power Corp. v. Alberici Western Constructors, Ltd., 2016 CarswellSask 186, 2016, the court held that the arbitration clause of the main contract between the owner and the contractor should be enforced […]

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