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

Contracts Must Be Honestly Performed Says The Supreme Court of Canada

In its recent decision in Bhasin v. Hrynew, the Supreme Court of Canada has established two fundamental principles for the Canadian common law of contract. First, parties are under a general obligation to perform contracts in good faith. Second, the parties have a duty to act honestly in the performance of contracts. These contractual obligations can […]

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Who Is A Successor To A Contract?

Most commercial agreements contain a clause stating that the contract is binding upon and for the benefit of “successors.”  For example, Article 10.1 of the CCDC Cost Plus Contract states that the contract “shall enure to the benefit of and be binding on…successors”. What does the word “successors” mean?  Who are “successors”?  Do those who […]

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Does Inaction Amount To Acceptance Of A Repudiation Of Contract?

Can inaction by a party to a contract amount to an acceptance of the repudiation of the contract by the other party?  That was the issue in the very recent decision of the Ontario Court of Appeal in Brown v. Belleville (City). This is an important issue in construction law because of the critical effect […]

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Andrews v ANZ: What Are The Consequences For Building Contracts?

The recent decision of the Australia High Court in Andrews v. Australia and New Zealand Banking Group Ltd. is important for the building industry.  While it dealt with a banking contract, the principles it applied are directly relevant to building contracts.  The central decision in Andrews v. ANZ is that the doctrine prohibiting contractual penalties […]

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What Does A CGL Policy Cover After Progressive Homes?

A:        OVERVIEW The decision of the Supreme Court of Canada in Progressive Homes Ltd. v. Lombard General Insurance Co of Canada[1]  is a seminal decision with respect to the application of CGL policies to the construction industry.  While the immediate effect of the decision was with respect to the insurer’s duty to defend the insured, […]

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Is The Owner Liable For Delaying The Commencement Of The Building Project?

Time is money on a building project. And the obligation of the owner and the contractor to proceed expeditiously with the project may be one of the most important aspects of their relationship. But what if the owner delays in notifying the contractor of the award, or in signing the building contract?  Can the owner […]

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Condominium Unit Owners Can Claim Common Elements Relief

Construction projects involve many participants and each of those participants may have a claim against other participants.  Developers, immediate and subsequent purchasers, contractor and subcontractors, consultants: they are all potential plaintiffs.  So one of the main issues in construction law is:  who can be a plaintiff against what defendant and for what relief?  This issue […]

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Can A Contractor Use Its Own Mistakes To Withdraw Its Bid?

A contractors’ worst nightmare is making a mistake in a tender and being stuck with a low bid.  The next worse nightmare is submitting a winning bid but one which contains errors which arguably make the bid non-compliant. What happens when both occur?  Can the contractor get out of its low bid by its own […]

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When and How is a Subcontractor Bound by its Tender in a Bid Depository System?

The process by which subcontractors’ tenders are accepted in a bid depository is fundamental to the efficacy of that system.  If that process does not effectively bind the subcontractors, then the subcontractors will be able to unilaterally withdraw their bids later.  The British Columbia Supreme Court addressed this issue in its recent decision in Civil […]

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