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

What Amounts to Good Faith Conduct or Repudiation on Construction Projects?

Last week we discussed joint ventures in construction projects.  That issue arose from the important recent decision of the Prince Edward Island Court of Appeal in WCI Waste Conversion Inc. v. ADI International In.    In this article, we will examine two further issues raised by that decision: One, the duties of good faith and […]

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When Is A Building Contract A Joint Venture?

A difficult issue that may arise between contractors and subcontractors is the nature of their contractual relationship.  Are they:  independent contractors; or partners; or joint venturers; or employees one of the other?   In WCI Waste Conversion Inc. v. ADI International Inc, The Prince Edward Island Court of Appeal recently considered whether a contractor and subcontractor […]

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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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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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Remember Rainy Sky: The Commercially Sensible Interpretation Prevails

Every once in a while, an important decision comes along which should be put in your hip pocket so that it can be pulled out when needed.  Rainy Sky S.A. v. Kookmin Bank is such a decision.  In this decision, the U.K. Supreme Court (formerly the House of Lords) recently held that if there is […]

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Can An Arbitration Claim Be Dismissed For Delay?

Does an arbitral tribunal have authority to dismiss an arbitration claim for want of prosecution?  Some arbitration statutes expressly state that a tribunal has the power to do so.  Absent such an express power, the British Columbia Court of Appeal has held that the tribunal has no inherent authority to do so:  Premium Brands Operating […]

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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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When and How is a Subcontractor Bound by its Tender in a Bid Depository System?

The process by which subcontractors’ tenders are accepted in a bid depository is fundamental to the efficacy of that system.  If that process does not effectively bind the subcontractors, then the subcontractors will be able to unilaterally withdraw their bids later.  The British Columbia Supreme Court addressed this issue in its recent decision in Civil […]

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The Limitation Period Quagmire Between Litigation And Arbitration

The limitation period is a vexing issue to any party involved in a commercial dispute.  This truism applies even more to construction disputes because there are a variety of events that may trigger the beginning of the limitation period.  The limitation issue becomes even more vexing when the proceeding can be either:  by way of […]

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