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

Alberta Court Rejects Assertion That The Mortgagee Was An “Owner” Under The Builder’s Lien Act

In Westpoint Capital Corp. v. Solomon Spruce Ridge Inc., 2017 CarswellAlta 580, 2017 ABQB 254, the Alberta Court of Queen’s Bench made a number of decision relating to the priorities between lienholders and mortgagees. The court found that a mortgagee was not an “owner” of the land within the Alberta Builder’s Lien Act. In any […]

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Payment Clause Held Not To Be A “Pay-When-Paid” Clause

In Cardinal Contracting Ltd. v. Seko Construction (Vancouver) Ltd., 2017 CarswellYukon 107, 2017 YKSC 51, the Yukon Supreme Court recently considered whether a payment clause in a construction contract was a pay-when-paid clause which entitled the contractor to only pay the subcontractor if and when it was paid by the owner. The clause in question […]

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Amendments To The Ontario Construction Lien Act Have Been Given First Reading (Part 2)

On May 31, 2017, the Ontario Legislature gave first reading to Bill 142 which will enact the Construction Lien Amendment Act, 2017. By this legislation, substantial amendments are proposed to the Ontario Construction Lien Act, including the change of the name of the Act to the Construction Act. This proposed legislation (the Proposed Act) follows […]

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Amendments To The Ontario Construction Lien Act Have Been Given First Reading (Part 1)

On May 31, 2017, the Ontario Legislature gave first reading to Bill 142, which will enact the Construction Lien Amendment Act, 2017. By this legislation, substantial amendments are proposed to the Ontario Construction Lien Act, including the change of the name of the Act to the Construction Act. The text of Bill 142 may be […]

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Which Takes Precedence In A Building Contract: A Performance Standard Or A Design Standard?

The United Kingdom Supreme Court recently considered the question of whether the performance standard or the design standard prescribed in the contract took precedence. In MT Hojgaard AS v E.ON Climate and Renewables UK Robin Rigg East Ltd & Anor [2017] UKSC 59, the court held that the performance requirement took precedence and that the […]

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A Subcontractor Recovers Against The Owner In Unjust Enrichment

A subcontractor who fails to register a construction lien faces an uphill battle in asserting a claim in unjust enrichment against the owner. That is because the owner will rely upon its contract with the contractor for any benefit that the owner has obtained from the subcontractor’s work. The owner will also assert that there […]

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How Does The Loss Of A Chance Apply To Damages For Breach Of A Building Contract?

Construction law practitioners must keep their eyes and ears open to the evolving case law in other areas of the law. That case law may have direct application to building contract issues. This fact is especially true for the assessment of damages. Because of the numerous contracts involved in a building project, a breach of […]

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What Does A “Right To Appeal In Accordance With The Provisions Of The Arbitration Act” Mean?

This question seems very straightforward, but when the Arbitration Act provides several rights of appeal, depending on what the parties have or have not agreed upon, then which of those rights of appeal apply? Only the right to appeal that applies if the parties have not agreed to further rights of appeal? Or, all the […]

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When Does An Arbitral Award Contain An Appealable Question Of Law?

The Supreme Court of Canada has recently re-examined the issue of whether a statutory and contractual interpretation by an arbitral tribunal may be appealed. The court re-iterated the principle that arbitral awards are not appealable on a question of law when in reality the question is one of mixed fact and law. On this basis, […]

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