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

Trust Fund Set Off Rights Are Not Available If No Trust Fund Is Maintained and No Lien Claim Is Made: Ontario Court Of Appeal

The Ontario Court of Appeal recently considered the scope of the right of set-off under the trust fund sections of the Ontario Construction Lien Act (the Act) and under equitable set-off under a contract claim. In Architectural Millwork & Door Installations Inc. v. Provincial Store Fixtures Ltd., the Court of Appeal held that the owner […]

Continue Reading

Multiplicity Of Litigation Is Not A Sufficient Reason To Stay An Arbitration

The Saskatchewan Court of Appeal has recently released an interesting decision dealing with arbitration and court proceedings arising from a construction contract. In Saskatchewan Power Corp. v. Alberici Western Constructors, Ltd., 2016 CarswellSask 186, 2016, the court held that the arbitration clause of the main contract between the owner and the contractor should be enforced […]

Continue Reading

Contractor’s Claim For Extras And Changed Circumstances Held To Be Ineffective Due To Lack Of Particulars

In Ross-Clair v. Canada (Attorney General), the Ontario Court of Appeal has recently held that a contractor’s claim for extras and changed circumstances was ineffective because it contained inadequate particulars of the claim. The Extras/Changed Circumstances clause The changed circumstances clause in the construction contract stated in part as follows: 35.4 A written claim referred […]

Continue Reading

Ontario Divisional Court clarifies the Trust Fund Obligation Under The Construction Lien Act

In Robert Nicholson Construction Co. v. Edgecon Construction Inc., 2016 CarswellOnt 8345, 2016 ONSC 3107, the Ontario Divisional Court decided two matters of importance under the trust fund sections (sections 7-13) of the Ontario Construction Lien Act. First, the court held that a subcontractor cannot assert a trust fund claim against the owner under the […]

Continue Reading

Should The Interpretation Of A Standard Form Contract Be Reviewed According To A Standard Of Legal Correctness?

In its decision in Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, the Supreme Court of Canada held that the interpretation of a contract should have regard to the facts surrounding the making of the contract. For this reason, the review by a court of an arbitrator‘s decision interpreting […]

Continue Reading

Unlicensed Architect Cannot File A Legal Hypothec: Quebec Court of Appeal

In Urbacon Architecture inc. c. Urbacon Buildings Group Corp., the Quebec Court of Appeal has recently held that an architectural firm that was unlicensed in the Province of Quebec is not entitled to file a legal hypothec, the Quebec law equivalent of a construction or builders lien. The court so found notwithstanding the cross-Canada reciprocal […]

Continue Reading

Ontario Court Of Appeal Upholds Decision In Popack v. Lipszyc Re: UNICTRAL Model Law

In my article on April 24, 2016, I commented upon the important decision of the Ontario Superior Court in Popack v. Lipszyc, 2015 CarswellOnt 8001, 2015 ONSC 3460. That decision has been recently upheld by the Ontario Court of Appeal. The Court of Appeal did not address the various legal issues dealt with in my article […]

Continue Reading

General Lien Provision Inapplicable If Main Contract So Provides: Ontario Court Of Appeal

A construction and builders lien claimant may, in some circumstances, file a general lien. The general lien allows the claimant to claim a lien over a number of properties to which it has supplied services or materials. Section 20(2) of the Ontario Construction Lien Act (the Act), unlike the lien statutes in other provinces, enables […]

Continue Reading

Sattva Limits The Court’s Power To Review Arbitral Award Relating To The Exercise Of An Option; B.C. Court of Appeal

The courts of British Columbia have recently wrestled with the question whether they can review the award of an arbitrator dealing with the exercise of an option. In Urban Communications Inc. v. BCNET Networking Society, the arbitrator and a single judge of the B.C. Supreme Court arrived at diametrically opposite conclusions as to whether the […]

Continue Reading
Page 2 of 2512345...1020...Last »