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

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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Contractor’s Claim For Extras And Changed Circumstances Held To Be Ineffective Due To Lack Of Particulars

In Ross-Clair v. Canada (Attorney General), the Ontario Court of Appeal has recently held that a contractor’s claim for extras and changed circumstances was ineffective because it contained inadequate particulars of the claim. The Extras/Changed Circumstances clause The changed circumstances clause in the construction contract stated in part as follows: 35.4 A written claim referred […]

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General Lien Provision Inapplicable If Main Contract So Provides: Ontario Court Of Appeal

A construction and builders lien claimant may, in some circumstances, file a general lien. The general lien allows the claimant to claim a lien over a number of properties to which it has supplied services or materials. Section 20(2) of the Ontario Construction Lien Act (the Act), unlike the lien statutes in other provinces, enables […]

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Evaluation Breached Tender Conditions: Alberta Queen’s Bench Court

You would think that the owner would get one thing right before issuing an invitation for tenders: its standard for evaluating the tenders. Yet, in Elan Construction Limited v South Fish Creek Recreational Association, the Alberta Court of Queen’s Bench recently found that the owner’s tender evaluation criteria were unfair and did not reflect the […]

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Penalty Clauses: Seven Principles Stated By The U.K. Supreme Court

The recent judgment of the Supreme Court of the United Kingdom in Cavendish Square Holding BV v Talal El Makdessi is a must-read for anyone involved in contract law. In this decision of some 132 pages and 316 paragraphs, the U.K. Supreme Court provides an exhaustive analysis of the history and policy behind one of […]

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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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Can General Damages Be Awarded For The Breach Of A Building Contract?

Generally speaking, damages for a non-financial loss are not awarded for the breach of a business contract. That is because those sorts of damages are not foreseeable. The breach of a business contract may give rise to anxiety and distress, but that result is usually thought of as part of the vicissitudes and rough and […]

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Quebec Court of Appeal Awards Impact Damages

When a breach of a building contract occurs, the damages can be extensive because the breach can have an impact on the performance of other parts of the contract. For this reason, a unique aspect of construction disputes is the potential award of what are called “impact” costs or damages. In the recent decision of […]

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