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

Contract Limitation Clause Precludes Contractor’s Claim Over Against Designer

The limitation periods which apply to construction claims are difficult to sort out at the best of times. They are even more complicated when the limitation period applies to a claim over for contribution or indemnity. That situation arises when the owner sues the contractor and the contractor then seeks contribution or indemnity from another […]

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Construction Contract Held To Mandate The Payment Of Extras

One of the most contentious issues in building contracts is mechanism to ensure that the contractor is guaranteed payment for extras, and that the owner is guaranteed not to pay for something that is not an extra. It would be simple to state these propositions in a building contract, but they usually aren’t there. However, […]

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Contractor’s Contract With The Buyer Of Land Was A Sufficient Reason To Deny A Construction Lien And Unjust Enrichment Claim To The Contractor

In J. Lepera Contracting Inc. v. Royal Timbers Inc. the Ontario Divisional Court recently dealt with a claim in unjust enrichment by a contractor who had done work for the purchaser of land. The purchaser had agreed to buy the land under an agreement of purchase and sale, but later defaulted under that agreement, and […]

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Privy Council Defines Extra Work Under A Fixed Price Building Contract

In Mascareignes Sterling Co Ltd v Chang Cheng Esquares Co Ltd (Mauritius), the Privy Council of the United Kingdom recently set out some helpful principles to define the entitlement of a contractor to extra payment under a fixed price contract. The Privy Council held that the power to award extra payments under a fixed price […]

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Is A Notice Of Intention To Recover Costs A Proper Notice Of Claim Under A Building Contract?

In Ledore Investments Ltd. v. Ellis-Don Construction Ltd., the Ontario Superior Court has recently held that a letter from a contractor to a subcontractor stating that “we intend to recover these costs from you” was a sufficient notice to the subcontractor to satisfy the notice provision of the building contract. Accordingly, the court set aside […]

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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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