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

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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How Many Times Can A Contractor Sue The Owner Under The Same Construction Contract?

Can a contractor bring several claims against the owner arising from the same building contract?  Multiple proceedings arising from the same contract certainly seem like a waste of time and money.  And even if the contractor can do so, can those claims be asserted first in arbitration and then in court litigation?  Once again, different […]

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What Are The Limits Of Competence-Competence For Arbitral Tribunals?

Competence-competence is now a foundational principle of the modern law of arbitration.  According to that principle, an arbitral tribunal is competent to decide its own competence.  In other words, the tribunal has jurisdiction to decide its own jurisdiction.  That principle demands, in turn, that the arbitral tribunal, and not the court, should in the first […]

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Can An Agent Claim Damages As An Owner Under A Building Contract?

Agents of contractors and subcontractors often play a role and assert rights during construction projects. This is because contractors often use agents to perform the work, and construction lien legislation recognizes their right to assert a lien for the improvement of the land. But agents of owners do not often assert rights under a building […]

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Arbitration Clause Is A Separate Enforceable Agreement

What happens when an arbitration clause is contained within a commercial agreement that one party says never came into existence or is unenforceable? And what if the dispute involves persons who are not parties to the commercial agreement? Is the arbitration clause still enforceable? Yes, the Ontario Court of Appeal recently said in Kolios v. […]

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No Appeals From An Arbitrator’s Interim Decision Unless It Is A Final Order

The Ontario Court of Appeal has recently considered whether any appeal may be taken from a decision of an arbitral tribunal which is made prior to the final award. The Court held that no such appeal may be taken from such a decision, except if the decision amounts to a “final” order.  The decision appears […]

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Same Court, Different Results: When Does The Limitation Period Start For An Arbitration Claim?

When does the limitation period start for an arbitration claim?  Can the very making of the demand start the period running?  Yes, the Ontario Court of Appeal recently said in Federation Insurance Co. of Canada v. Markel Insurance Co of Canada. In so deciding, the Court of Appeal seems to have reached a conclusion which […]

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Supreme Court of Canada Holds: Court May Dismiss Action Based On An International Commercial Agreement Even After The Defendant Files A Defence

A very recent decision of the Supreme Court of Canada has held that a court may properly dismiss an action arising from an international commercial agreement, even after the defendant has filed a Statement of Defence:  Momentous.ca Corp. v. Canadian American Association of Professional Baseball Ltd.  This decision is important since the contracts in issue […]

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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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