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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Supreme Court Denies Leave In Tender Case – Refuses To Re-Write History

The Supreme Court of Canada has recently refused leave to appeal in Trevor Nicholas Construction Co. Ltd. v. Canada. In doing so, it has upheld the decisions of the Federal Court Trial Division and Federal Court of Appeal which declined to permit a bidder to rely on after-the-fact information to overturn an invitation to tender.  […]

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May a Contractor Sue a Subcontractor When It Agreed With The Owner To Obtain Project Insurance?

One of the most difficult issues in Canadian construction law is the impact of insurance on claims between owners, contractors and subcontractors. There are two levels to the issue: What is the impact of a clause in the building contract by which one party agrees to obtain insurance? And what is the impact of the […]

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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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Does A Tender Give Rise To Liability For Negligent Misrepresentation Or Bad Faith?

Can an informal tender process which is not part of a bid depository system give rise to liability for negligent misrepresentation?  Can it give rise to liability for bad faith conduct?   In Oz Optics Limited v. Timbercom, Inc., the Ontario Court of Appeal recently answered Yes to the first question, and after agonizing over […]

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An Owner Owes No Duty Of Care To A Subcontractor In A Bid Depository System

The Newfoundland and Labrador Court of Appeal has recently held that an owner does not owe a duty of care to a subcontractor arising from the normal operation of a bid depository system: Defence Construction (1951) Limited v. Air-Tite Sheet Metal Limited. The Background: The owner, Defence Construction, a wholly owned subsidiary of the government […]

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