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

Alberta Court Of Appeal Holds That A Court Action Is Not A Notice Of Arbitration

In previous articles I have warned readers about the dangers of the limitation period in relation to arbitration claims. You can look at my prior articles dated July 17, 2011, February 26, 2012 and August 26, 2012. These dangers are highlighted by the recent decision of the Alberta Court of Appeal in Lafarge Canada Inc. […]

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Can A Company Be Made Liable On A Contract By “Piercing The Corporate Veil”?

An incorporated company is the most common form of business organization, and this is no truer than in the construction industry.  One of the purposes of incorporation is to ensure that the liability for the business activities of the organization is solely that of the company and not that of the shareholders.  But what happens […]

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Does The CCDC Dispute Resolution Clause Require Arbitration?

Most building contracts contain dispute resolution clauses which refer to arbitration.  A dispute resolution clause can be mandatory – it can require arbitration – or it can be permissive – it can permit arbitration if all parties agree to arbitration when the dispute arises. One would think that the most important thing to make clear […]

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What Is The Priority Between Building Mortgages And Construction Liens In Respect Of Holdback Amounts Greater Than The Statutory Holdback?

The priorities between lienholders and mortgagees under the Construction Lien Act are not easy to understand.  They are even more difficult to understand and apply when the owner holds back more than the statutory minimum, and when the liens are discharged by security provided by the owner or mortgagee. Under sub-section 44(1) of the Act, […]

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Can A Lien Be Sheltered Under A Claim By A Lienholder Further Down The Supply Chain?

  The sheltering rights under the Construction Lien Act are fundamental protections for contractors, subcontractors and suppliers on a building project. But the definitions of what circumstances give rise to protected sheltering are somewhat vague.  One question is whether the liens of “superior” contractors or suppliers can shelter under an action commenced by an “inferior” […]

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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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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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Which Term Prevails In A Building Contract: The Specifications, Or A Warranty Of Fitness For Purpose?

A building contract usually includes a term requiring that the work or materials supplied adhere to the specifications. The contract may also contain implied or express warranties that the work will be fit for the intended purposes of the building project and free of defects. What happens when those terms result in inconsistent results? What […]

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Two Construction Lien Issues: Architect’s Pro-Forma Certificate Is Invalid; GST Must Be Added To Holdback

The Ontario Superior Court recently decided two important issues relating to construction liens. In Wellington Plumbing & Heating Ltd. v. Villa Nicolini Incorporated, the court held that a late-issued pro forma architect’s certificate was invalid, and that GST must be added to a holdback. Factual Background Villa Nicolini constructed a retirement home in Vaughan. The […]

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