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

Lien For Work Done Before The Certificate Of Substantial Completion And Payment Of The Major Lien Fund Does Not Attach To The Minor Lien Fund

Summary In Chandos Construction Ltd. v. Twin Peaks Construction Ltd., a Master of the Alberta Court of Queen’s Bench has held that a lien for work done prior to the filing of a certificate of substantial completion and payment of the major lien fund does not attach to the minor lien fund. Background Chandos was […]

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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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Ontario Divisional Court clarifies the Trust Fund Obligation Under The Construction Lien Act

In Robert Nicholson Construction Co. v. Edgecon Construction Inc., 2016 CarswellOnt 8345, 2016 ONSC 3107, the Ontario Divisional Court decided two matters of importance under the trust fund sections (sections 7-13) of the Ontario Construction Lien Act. First, the court held that a subcontractor cannot assert a trust fund claim against the owner under the […]

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Unlicensed Architect Cannot File A Legal Hypothec: Quebec Court of Appeal

In Urbacon Architecture inc. c. Urbacon Buildings Group Corp., the Quebec Court of Appeal has recently held that an architectural firm that was unlicensed in the Province of Quebec is not entitled to file a legal hypothec, the Quebec law equivalent of a construction or builders lien. The court so found notwithstanding the cross-Canada reciprocal […]

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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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Are “Services” Lienable If They Relate To Something That Is Not An “Improvement”?

Whether something put on land is an “improvement” for the purposes of construction and builders’ liens can be a difficult question of fact and law. Usually the dispute revolves around the degree of attachment of the “thing” to the land and the permanence of the attachment. Then, add to that dispute the fact that “services” […]

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Damage To The Rebar And The Deflection Of Floor Slabs Are Covered Under Builders’ Risk Policy: B.C. Court Of Appeal

The extent of coverage under Builders’ Risk policies is a matter of continuing debate in Canada. Insurers try to draft policies which do not cover the poor workmanship of contractors, and contractors continue to insist that they have bought and paid for insurance which covers damage to the work in progress. And so the debate […]

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Trust Fund Obligations Continue After A Lien Bond Is Filed: Supreme Court Of Canada

The Supreme Court of Canada recently released its highly anticipated decision in Stuart Olson Dominion Construction Ltd. v. Structal Heavy Steel. The court has held that the trust fund obligations on a construction project did not terminate when the contractor filed a bond in respect of the subcontractor’s lien. This decision is of fundamental importance […]

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