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

Does An Insurer’s Duty To Defend Apply If The Insured Complies With An Environmental Investigation?

The scope of an insurer’s duty to defend is a crucial issue in relating to any liability insurance policy, particularly those applying to building projects.   One of the questions which may arise is:  what is the nature of a “claim” for the purpose of the duty to defend?  That question will almost always be determined […]

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What Is The Effect of Piercing The Corporate Veil?

When the court pierces the corporate veil of a corporation, can another party be found to be the real party to the contract? Or is that other party only subject to consequential relief and not contractual relief? That is the issue which the English Court of Appeal recently faced in VTB Capital Plc v. Nutritek […]

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Is The Owner Liable For Delaying The Commencement Of The Building Project?

Time is money on a building project. And the obligation of the owner and the contractor to proceed expeditiously with the project may be one of the most important aspects of their relationship. But what if the owner delays in notifying the contractor of the award, or in signing the building contract?  Can the owner […]

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Incorporation By Reference In Building Contracts

Incorporation by reference in building contracts By Thomas G. Heintzman and Julie Parla1 A common clause in a building contract is one which incorporates the terms of another contract or document into the building contract in issue. The effect of such a clause is referred to as “Incorporation by Reference”. These clauses are common in […]

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Can An Arbitration Survive Fraud?

When material evidence tendered to an arbitral tribunal is fraudulent, we expect the court having jurisdiction to be very inclined to set the award aside.  But as the recent decision of the English High Court in Chantiers de l’Atlantique S.A. v. Gaztransport & Technigaz S.A.S. demonstrates, “it ain’t necessarily so.”  In that case the award […]

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When Is A Mediation Agreement Enforceable?

One of the most difficult issues in the law of alternative dispute resolution is whether a mediation clause creates an enforceable obligation.  That issue has an impact on related issues and rights.  If a party gets the issue wrong, it may miss a limitation period or affect its right to rely upon an arbitration or […]

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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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Condominium Unit Owners Can Claim Common Elements Relief

Construction projects involve many participants and each of those participants may have a claim against other participants.  Developers, immediate and subsequent purchasers, contractor and subcontractors, consultants: they are all potential plaintiffs.  So one of the main issues in construction law is:  who can be a plaintiff against what defendant and for what relief?  This issue […]

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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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