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

English Courts Enforce An Obligation To Mediate And Negotiate

The articles on this site have often alerted the readers to the hidden dangers of mediation and negotiation clauses in construction contracts. The principle danger is that these sorts of clauses may be unenforceable, for two reasons. The wording of the particular clause may be drafted in such a way as to create no enforceable […]

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When May A Mareva Injunction Be Issued To Enforce An International Commercial Arbitration Award?

In Sociedade-de-Fomento Industrial Private Ltd. v. Pakistan Steel Mills Corp. (Private) Ltd, the British Columbia Court of Appeal recently considered the use of a Mareva injunction to enforce an award of an international commercial arbitration. The court over-turned the lower court’s decision which had denied that remedy based upon alleged material non-disclosure. In doing so, […]

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Has The Limitation Period For Constructive Trust Claims Been Thrown Wide Open?

Constructive trust claims are a natural for construction projects. Unpaid subcontractors and suppliers may have improved the land owned by or secured to the owner or mortgagee. But they may have a worthless claim against a bankrupt contractor and may have let the time for filing a construction lien claim pass by. In these circumstances […]

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The Traps And Perils Of Limitation Of Liability Clauses

In Swift v. Eleven Eleven Architecture Inc., the Alberta Court of Appeal recently considered the impact and scope of a limitation of liability clause in a consultant’s contract between an owner and the architects on a building project. The court arrived at three important conclusions. First, the clause did not apply to and did not […]

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When Should A Contract Arising From A Tender Be Declared Void For Mistake?

We don’t usually think of the law of mistake as having any relevance in the 21st century. Mistake seems to be an 18th century problem which couldn’t possibly apply to today’s building contracts, especially those arising out of the modern law of tender. But the recent decision in Asco Construction Ltd. v. Epoxy Solutions Inc. […]

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Does The CCDC Dispute Resolution Clause Require Arbitration?

Most building contracts contain dispute resolution clauses which refer to arbitration.  A dispute resolution clause can be mandatory – it can require arbitration – or it can be permissive – it can permit arbitration if all parties agree to arbitration when the dispute arises. One would think that the most important thing to make clear […]

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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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Supreme Court Denies Leave In Tender Case – Refuses To Re-Write History

The Supreme Court of Canada has recently refused leave to appeal in Trevor Nicholas Construction Co. Ltd. v. Canada. In doing so, it has upheld the decisions of the Federal Court Trial Division and Federal Court of Appeal which declined to permit a bidder to rely on after-the-fact information to overturn an invitation to tender.  […]

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Is The Person Who Ultimately Pays A Guarantor Entitled To The Securities Held By The Guarantor?

Bonds and other forms of guarantees and indemnities are commonly used on construction projects. If a contractor applies for a performance bond, the bonding company will require the contractor to indemnify the bonding company. The bonding company may also require the principal shareholder of the contractor to guarantee the contractor’s obligation and to directly indemnify […]

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