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

Restitutionary Payment May Be Ordered For An “Ineffective” Construction Contract

Owners and contractors should always avoid undertaking a project without a contract.  But if they do build the project without a contract, the British Columbia Court of Appeal has recently recognized in Infinity Steel Inc. v. B & C Steel Erectors Inc. that the party which received the benefit of the work or supplies must […]

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Ontario’s Highest Court Upholds NAFTA Arbitration Against Mexico

The Ontario Court of Appeal has just released an important decision upholding an arbitration award under NAFTA against Mexico.  This decision shows that Canadian courts will be reluctant to interfere on jurisdictional grounds with the remedial decisions of international commercial arbitrations. In The United Mexican States v. Cargill, Incorporated, Mexico opposed the recognition in Ontario […]

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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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A Contractor’s Construction Errors May Be Covered By A General Liability Policy

In two recent decisions, courts in Ontario and British Columbia have held that negligence during construction (or manufacturing) may be covered by general liability policies even though the damage is part of the construction (or the product sold): California Kitchens & Bath Ltd. v. AXA Canada Inc. and Bulldog Bag Ltd. v. AXA Pacific Insurance […]

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When Is An Arbitration Award An Enforceable Judgment?

When you enter into an arbitration agreement, do you think about whether the arbitration process results in an enforceable judgment?  You should. The award that you receive at the end of the arbitration process isn’t a judgment and can’t be immediately enforced as a judgment.  That is what the U.K. Court of Appeal recently held […]

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Mary Carter Decision Upheld By The Supreme Court Of Canada

In my article of April 2011, I reported about the decision in Aecon Buildings v. Stephenson Engineering Limited.  In that decision, the Ontario Court of Appeal stayed an owner’s claim because of the non-disclosure of a Mary Carter agreement. The Supreme Court of Canada has recently dismissed an application for leave to appeal from that […]

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When Is An Arbitration An International Commercial Arbitration?

Is an arbitration between two domestic companies arising from a contract for a shipment between two foreign countries an “international commercial arbitration” for the purposes of the UNCITRAL Model Rules, particularly if the arbitral agreement requires arbitration in a foreign location?  And if it is, does the domestic court have any residual discretion to stay […]

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Can An Arbitrator Determine The Rights Of Non-Parties?

The Alberta Court of Appeal recently considered an arbitration award in which the arbitrator had decided the rights of non parties to the arbitration.  In MJS Recycling Inc. v. Shane Homes Limited, the Court held that the arbitrator had no authority to determine the rights of non-parties. The court set aside the award and remitted […]

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When The Contractor Plays Hard-Ball What Does A Sub-Contractor Do; Peter Kiewit Redux?

An age-old problem arising from a tender on a construction project is:   what does a sub-contractor do when it is the successful bidder but believes that the work is different than shown in the tender documents and the contractor says:  Those are the conditions: Take ‘em or leave ‘em.   But if you back out of […]

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