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

Does A Mediation Agreement Suspend The Limitation Period Or The Period To Set Down A Lien For Trial?

An agreement to mediate is often found in arbitration and building contracts. Yet, the impact of mediation upon court or arbitral proceedings is uncertain. Does an agreement to mediate mean that, until the mediation occurs, there is no cause of action and therefore there is no entitlement to commence arbitration or an action?  In that […]

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When Is An Officer, Director Or Controlling Person Liable For A Construction Lien Trust Fund Claim?

What are the limits of the trust fund liabilities under the Construction Lien Act? Those liabilities do not just apply to a contractor or subcontractor engaged in a building project.  Those liabilities may also apply to an officer or director or a person controlling the company. But can an officer, director or controlling person be […]

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When Is The Main Building Contract Incorporated By Reference Into The Subcontract?

Most standard form building contracts provide for the incorporation of the main contract into the subcontract.  For instance, GC 3.7.1 of the CCDC 2 Stipulated Price Contract requires the contractor to incorporate the terms of that contract into all agreements with subcontractors and suppliers.  But what effect does an Incorporation by Reference clause in the […]

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Decision Holding That Demolition Is Not An Improvement Is Reversed

In my article dated December 11, 2011, I reported on a decision of the British Columbia Supreme Court holding that demolition is not an “improvement” for the purposes of the B.C. Builders Lien Act (the Act).  That decision has since been reversed by the B.C. Court of Appeal.  It was not reversed on the merits, […]

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What Mortgage Payments Are “Advances” That Have Priority Over Lien Claims?

A recurring issue for construction and builders liens is whether the liens have priority over mortgage advances.  One question which does not often arise is:  what sort of payments by a mortgagee do constitute “advances” under a mortgage?  In other words, what sort of payments by a mortgagee can even qualify for priority over lien […]

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Can Money Paid Into Court Be Used To Discharge Other Liens?

When a contractor pays money into court to discharge a lien of a sub-contractor, can that money only be used to discharge that lien holder’s claim?  Or is it available to pay the liens of all eventual lien holders?  In Canadian Western Bank v. 702348 Alberta Ltd., the Alberta Court of Queen’s Bench recently decided […]

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Does The Removal Of Equipment Amount To An Improvement For Lien Purposes?

Update:  The decision of the BC Supreme Court in West Fraser Mills Ltd. v. BKB Construction Inc., referred to in this article has since been reversed by the BC Court of Appeal.  Please see my blog of April 7, 2012.  The decision of the BC Supreme Court may still be relevant if and when that […]

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Which Dispute Resolution System Applies – Construction Lien or Arbitration?

Courts have difficulty reconciling the rights of parties to arbitration when there are construction liens, cross claims, counterclaims and third party rights involved.  How can arbitration, which is a bilateral dispute resolution system, resolve those disparate rights?  And what appeal rights are there for the parties who are dissatisfied with a judge’s conclusion that the […]

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The Equitable Doctrine of Marshalling Applies To Construction Liens

Construction Law  –  Construction liens  –  Marshalling The Construction Lien Act seems to be a world unto itself, unaffected by the general principles of law.  But the recent decision of the Alberta Queen’s Bench in Gerrow v. Dorais reminds us that a construction lien is one form of secured interest.  The lien is therefore subject […]

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