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

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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The Seven Principles Of Value For Unjust Enrichment

What is something worth? And if it’s worth something to you, is it worth the same to me? Or is everything in the eyes of the beholder? These are tough questions at the best of times. But they are even tougher in the case of a claim for unjust enrichment. In unjust enrichment, value is […]

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Is A Deposit Forfeited In Absence Of Proven Damages?

The forfeiture of a deposit is one of the major tools for ensuring that contracts are performed.  But there is a debate about whether a deposit can be forfeited if the party forfeiting it has suffered no damages, or damages less than the amount of the deposit.  Until recently in British Columbia, there were decisions […]

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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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The Mother Of All Tender Cases – The Fifth Issue: Determining Damages In An Unfair Tender Case

The last two articles have dealt with the recent decision of the Ontario Superior Court of Justice in Envoy Relocation Services Inc. v. Canada (Attorney General). That decision concerned a tender by the federal government.  The trial judge awarded $29 million to an unsuccessful bidder due to the court’s findings that the tender had been […]

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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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Can Silence Amount To A Fraudulent Misrepresentation?

The Ontario Court of Appeal recently dealt with the issue of what sort of representations amount to fraud, and what representations survive an “entire agreements” clause. In Iatomasi v. Conciatori, the Court of Appeal held that when, during the pre-contractual negotiations for the sale of a building , a vendor delivers plans to a purchaser, […]

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If You Want Specific Performance, Do You Still Have To Mitigate Your Damages?

Is a party to a contract obligated to mitigate its damages at the same time that it is asking the court to order specific performance? Since the party wants the contract performed, not damages for non-performance, the obligation to mitigate seems to be totally inapplicable. Yet, in Southcott Estates Inc. v. Toronto Catholic District School […]

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Does An Interim Lender To A Construction Project Owe A Duty of Care?

Construction projects don’t often proceed without a lender. And often there is an interim lender which provides financing pending the advancement of funds by the final lender. In this circumstance, two questions arise: First:  Does the interim lender owe a duty of care to the owner or purchaser of the project? Second:  If the interim […]

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