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

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 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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Can Silence Amount To A Fraudulent Misrepresentation?

The Ontario Court of Appeal recently dealt with the issue of what sort of representations amount to fraud, and what representations survive an “entire agreements” clause. In Iatomasi v. Conciatori, the Court of Appeal held that when, during the pre-contractual negotiations for the sale of a building , a vendor delivers plans to a purchaser, […]

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What Does A CGL Policy Cover After Progressive Homes?

A:        OVERVIEW The decision of the Supreme Court of Canada in Progressive Homes Ltd. v. Lombard General Insurance Co of Canada[1]  is a seminal decision with respect to the application of CGL policies to the construction industry.  While the immediate effect of the decision was with respect to the insurer’s duty to defend the insured, […]

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Is The Owner Liable For Delaying The Commencement Of The Building Project?

Time is money on a building project. And the obligation of the owner and the contractor to proceed expeditiously with the project may be one of the most important aspects of their relationship. But what if the owner delays in notifying the contractor of the award, or in signing the building contract?  Can the owner […]

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Incorporation By Reference In Building Contracts

Incorporation by reference in building contracts By Thomas G. Heintzman and Julie Parla1 A common clause in a building contract is one which incorporates the terms of another contract or document into the building contract in issue. The effect of such a clause is referred to as “Incorporation by Reference”. These clauses are common in […]

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Decision Holding That Demolition Is Not An Improvement Is Reversed

In my article dated December 11, 2011, I reported on a decision of the British Columbia Supreme Court holding that demolition is not an “improvement” for the purposes of the B.C. Builders Lien Act (the Act).  That decision has since been reversed by the B.C. Court of Appeal.  It was not reversed on the merits, […]

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Can A Contractor Use Its Own Mistakes To Withdraw Its Bid?

A contractors’ worst nightmare is making a mistake in a tender and being stuck with a low bid.  The next worse nightmare is submitting a winning bid but one which contains errors which arguably make the bid non-compliant. What happens when both occur?  Can the contractor get out of its low bid by its own […]

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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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