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

Is There An Intermediate Position Between An Invitation To Tender And A Request For Proposal?

Not all requests for bids issued by an owner are the same. A request for bids that will be binding on the chosen bidder is usually referred to as an Invitation to Tender.  On the other hand, a request for bids which is not binding on the chosen bidder is usually referred to as a […]

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Is A “May Arbitrate” Clause Mandatory Or Permissive?

What is the meaning of an arbitration clause which states that a dispute “may be determined by arbitration”?   Does the clause mean that the arbitration process is permitted but not mandatory?  Or does the word “may” mean that the parties do not have to have a dispute, but if they do, the arbitration clause applies? […]

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Can An Owner Look Behind A Bid And Find It Non-Compliant?

Is an owner entitled to look behind a bid submitted in response to an invitation to tender and determine whether it is compliant with the terms of the invitation to tender, even though on its face the bid is compliant? And if the owner does so, and determines that the bid is non-compliant, can the […]

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Who Is A Successor To A Contract?

Most commercial agreements contain a clause stating that the contract is binding upon and for the benefit of “successors.”  For example, Article 10.1 of the CCDC Cost Plus Contract states that the contract “shall enure to the benefit of and be binding on…successors”. What does the word “successors” mean?  Who are “successors”?  Do those who […]

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Does Inaction Amount To Acceptance Of A Repudiation Of Contract?

Can inaction by a party to a contract amount to an acceptance of the repudiation of the contract by the other party?  That was the issue in the very recent decision of the Ontario Court of Appeal in Brown v. Belleville (City). This is an important issue in construction law because of the critical effect […]

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Who Decides If There Is An Appeal From A Court Order Requiring Arbitration: The Parties Or The Court?

One of the first issues that can arise in a dispute is whether arbitration or court proceedings must be pursued. The issue will often arise from a motion by a defendant in the action.  The defendant will bring a motion to stay or dismiss the action on the basis that the dispute must be arbitrated. […]

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Does A Mediation Agreement Suspend The Limitation Period Or The Period To Set Down A Lien For Trial?

An agreement to mediate is often found in arbitration and building contracts. Yet, the impact of mediation upon court or arbitral proceedings is uncertain. Does an agreement to mediate mean that, until the mediation occurs, there is no cause of action and therefore there is no entitlement to commence arbitration or an action?  In that […]

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Is An Agreement To Mediate Enforceable?

A recurring issue in arbitration and construction law is whether an agreement to mediate is enforceable. That is because an arbitration or building contract may contain a clause imposing an obligation to mediate before arbitrating. If the agreement to mediate is enforceable, that likely has certain consequences.  The limitation period is likely not running and […]

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Is A Third Party Obliged To Bring Its Claim Under An Arbitration Agreement

A recurring issue in arbitration law is whether a third party is bound to assert his or her claims by way of arbitration, even though the third party is not a party to the arbitration agreement. In Yaworski v. Gowling Lafleur Henderson LLP, the Alberta Court of Appeal recently held that, where a limited partnership […]

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