Newsletter Archives
"Building Relationships" – Construction
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May 2010
Applewood Glass & Mirror Inv. V. Baun Construction Inc.
Time after work completed greater than 45 days lien expire perform defective work perform trivial
work extend time
Colautti Construction Ltd. V. Ashcroft Development Inc.
general payment to many invoices debtor allocates among invoices when creditor may allocate
among invoices
March 2010
Tercon Contractors Ltd. v. British Columbia
Tender exclusion clause for damages if breach of duty
January 2010
Parkland Plumbing v. Minaki Lodge Resort 2002 Inc.
Who is an owner lifting corporate veil priority of mortgagee is owner section 78
November 2009
Re Kerr Interior Systems Ltd.
Companies Creditors Arrangement Act trust claim lien claim - secured creditor
Ledcor Construction Ltd. v. 54033 B.C. Ltd.
PCL Constructors Westcoast Inc. v. Norex Civil Contractors Inc. & CRA
Super priority for employee deduction and GST effect of setoff on priority
September 2009
D.J. Venasse Construction Ltd. v. MVD Properties Inc.
Legal setoff equitable setoff summary judgment agreement not binding on delivery of defence on
default
July 2009
Salit Steel v. Mondiale Development Ltd.
No holdback contract void unilateral amendment of contract interest in invoice only interest
contrary to interest Act self help remedy frowned upon
May 2009
G & S Electric Ltd. v. Devlan Construction Ltd.
Tender over budget privilege clause - owner requests re-price general deals with low sub and
competitor general accepts competitor breach of tender contract liable for damages
Aloia Bros Concrete Contractors Ltd. v. Richmond Hill.
Tender over budget privilege clause owner cancels project general claims owner should negotiate
price no duty to negotiate or to inform of budget price
March 2009
Good Mechanical v. Canadian Imperial Bank of Commerce
Tender with bank draft draft irregular breach of banking relationship - damages remote or
unforeseeable quantification of damages - mitigation
January 2009
Torty v. Gelina
Self represented parties fast practice produce all relevant facts for motion without notice costs
November 2008
Limitations Act 2002 2- year period ultimate 15-year period period running when knew or ought to
have known could expire before project even completed tolling agreements
September 2008
Port Hawkesbury v. Borcherdt Concrete Products Ltd.
Tender owner dealing with another supplier and doing part of work itself - owner not first rejecting
general's over-budget bid bid shopping damages reduced to reflect fact that owner might not have
awarded contract to general regardless
Clow Darling Ltd. v. Detra Builders Inc.
tender general obtaining sub's quote to determine own budget to perform work itself general not
accepting sub's bid bid shopping
July 2008
Design Services Ltd. v. Canada Trust
Tender sub suing owner pure economic loss and tort - proximity indeterminate liability
May 2008
Don Fry Scaffold Services Inc. v. Ontario
Duty of care for validity of bond duty of care , owner to sub
ICI Construction Ltd. v. Altavista Properties Inc.
motion for security for costs leave to bring motion must show motion is necessary
March 2008
Federated Contractors v. Ontario Realty Corp
Certificates of payment certifiers binding
9071-5392 Quebec Inc. Katsoulis
Damages proof
January 2008
Marden Mechanical Ltd. v. West-Con Developments Inc.
Payment dispute contractor walks off job who breached contract measure of damages -
mitigation
November 2007
Comstock Canada Ltd. v. Durr
Section 39 of Construction Lien Act information to be provided no need for relevance detail
involved in response
Kennedy Electric Ltd. v. Dana Canada Corp.
lienable interest definition of improvement chattels movable palpable and overriding error
September 2007
Duncan Ceiling v. Vin-Bon Retail System
Burden of proof section 13 of CLA assent to or acquiesce in breach of trust sole officer and
director, not enough
Coldmatic Refrigeration of Canada Ltd. v. Kenaidan Contracting Ltd.
Costs offer to settle costs exceed amount at stake
July 2007
Western Surety Co. v. Hancon Holdings Ltd.
Bond default - payment agreement unenforceable due to uncertainty mortgage registration an
abuse of process and slander of title
Stratton Electric v. Guarantee Company of North America
Surety paying sub surety's duty is to act reasonably and in good faith
May 2007
Double N Earthmovers Ltd. v. City of Edmonton
Tender duty to investigate -false information known after tender accepted duty to other bidders fairness
March 2007
1276761 Ontario Ltd. v. 2748355 Canada Inc.
leasehold interest lien section 19(1) of CLA notice to landlord for liability
Delaurentis Construction Ltd. v. Sentinel Polymers Inc.
Incomplete contract- allegation of delay completion to be in reasonable time
January 2007
David J Harvey Holdings Inc. v. Hercules Food Equipment Ltd.
Expert evidence offer and acceptance tender documents for terms of contract A
November 2006
310 Waste Ltd. v. Casboro Industries
setting down for trial in 2 years section 46 of Construction Lien Act impossibility
September 2006
Susin v. Goodreau
Self represented litigant many cases costs accounting
Matrix Contractors Building Services Inc. v. National Bank of Canada
Bank representation on financing reliance bank to pay
July 2006
310 Waste Ltd. v. Casboro Industries
Kennedy Electric Ltd. v. Dana Canada Corp.
lienable interest definition of improvement chattels - movable
May 2006
containing:
Setoff
Landry Mechanical Services Ltd. v. J.C. Sulpher Construction Ltd.
payer setting off for full amount to person below when no liens of people below on construction ladder
Second Crack
Rafat General Contractor Inc. v. 1015734 Ontario Ltd.
no claim for lien no certificate of pending litigation
Overpayment
Aiken Bros. Hardware Ltd. v. Sergeant
no notice of lien overpayment reducing holdback liable only for holdback
Improper Lien
JDM Developments Inc. v. J. Stollar Construction Ltd.
improper lien no damages proved substantial indemnity costs awarded
March 2006
Coldmatic Refrigeration of Canada Ltd. v. Kenaidan Contracting Ltd.
dispute between two subs over responsibility for work interpretation of contracts
under design-build scenario
Design Services Ltd. v. The Queen
breach of contract A tender submitted by general only - can design build team
involved in bid also claim damages under contract? under tort?
January 2006
1379691 Ontario Ltd. v. Appugliese
general promising payment to subsub if sub did not pay enforceable promise
not a guarantee false statutory declaration
Del Ridge Construction Inc. v. General Accident Assurance Co
see November 2003 newsletter decision overturned on appeal not a case for
summary judgment
Double N Earthmovers Ltd. v. City of Edmonton
see July 2005 newsletter leave given for appeal to Supreme Court of Canada
November 2005
Toronto Transit Commission v. Gottardo Construction Ltd.
Contract A formed on opening of tenders - Equitable remedy of rescission application to Contract A
Active Fire Protection 2000 Ltd. v. BWK Construction
Effect on general if fails to take out all-risk property insurance
September 2005
Roy v. Thiessen
Negligent construction imminent danger duty of care standard of care
Active Fire Protection 2000 Ltd. v. BWK Construction
Effect on general if fails to take out all-risk property insurance
July 2005
Double N Earthmovers Ltd. v. City of Edmonton
Tender false information known after tender accepted duty to other bidders fairness
MHA Contracting Inc. v. Christie Mechanical Contractors Ltd.
Excess and improper lien substantial damages for lien removal
May 2005
David J Harvey Holdings Inc. v. Hercules Food Equipment Ltd.
Expert evidence construction practice contract formation void for uncertainty tender
March 2005
Pre-Con Inc. v. Carosi Construction Ltd.
Pay-if paid personal liability under trust when payment is deemed made owner not
paying for reasons outside of sub's control
January 2005
Silex Restoration Ltd. v. Strata Plan VR 2096
Tender non-compliance waiver - acceptance
Tender contract form of construction contract negotiate in good faith improper
corporate name personal liability for agent
November 2004
The Roofing Systems Inc. v. Atlas Corp.
Anticipatory breach of contract default on one contract breach of otherOctober 2004
Toronto Transit Commission v. Gottardo Construction Ltd.
Equitable remedy of rescission application to Contract A if Contract A rescinded, noContract B enforceable
July 2004
Derby Holdings Ltd. v. Wright Construction Western Inc.
Non-compliant tender incapable of acceptance low bidder may attack own tender as
non-compliant if uncertain owner cannot accept tender
Graham Industrial Services Ltd. v. Greater Vancouver Water District
Non-compliant tender court determines non-compliance based on objective test, not
subjective test even if instructions give owner that power
Toronto Transit Commission v. Gottardo Construction Ltd.
If tender includes further documents to be submitted, then those documents may be
reviewed to determine an error on the face of the tender - if tender stipulates further
documents, then failure to provide them makes tender non-compliant and incapable of
acceptance
May 2004
Wolfedale Electric v. RPM's Systems etc
Incorrect name breach of warranty of authority personal liability underBusiness Corporations Act chattels or improvement applicability of
Construction Lien Act
January 2004
Whitby Landmark Development v. Mollenhauer Construction
Interpretation of bond covers overpayment based on cost savings prejudice
failure to terminate contract
New Limitations Act basic 2-year limitation based on discoverability, including trust claims
15 year absolute limitation period
November 2003
Del Ridge Construction Inc. v. General Accident Assurance
Payment certificate withdrawal duty of consultant to make decisions act judicially
insurance
Saffinco Mechanical Ltd. v. Toronto District Public School Board
Fair wage policy non-payment of progress draws- termination of contract
September 2003
Cable Assembly v. Dufferin-Peel Catholic Board
Request for proposal acting unfairly
Burdi v. Yorkstar Development
Inordinate delay presumed prejudice actual prejudiceJuly 2003
1150402Ontario Inc. v. Delfino
Fraud personal liability trust not applicable two rungs down ladder subsubs not
beneficiary of general
March 2003
Silex Restoration Lytd. V. Strata Plan VR 2096
Tender acceptance non-compliant bad faith
Dispute resolution clauses standard contract delay stay of lien action
January 2003
Saffinco Mechanical Ltd. v. Toronto District Public School Board
Fair wage policy non-payment of progress draws termination of contract
Pollard Enterprises v. Arizon Disposal Services
All-risk insurance coverage includes subcontractors
October 2002
Baltimore Aircoil v. ESD Industries
Air Canada v. M & L Travel
Breach of trust under common law breach under Construction Lien Act personal liability bankruptcySeptember 2002
Maisonneuve v. Burley
Damages value of lands cost to complete deduction for betterment
June 2002
Cooperative D'Habitation Antigonish v. Laurentian General
Performance bond - limitation for claim
Zemelman v. Feder
Affidavit of verification - jurat not executed - validity of lien claim
Elmford Construction Co. v. South Winston Properties Inc.
Garnishment - trust monies - Creditor's Relief Act - priority
Fast Trac Bobcat & Excavating Service v. KWH Construction Ltd.
Contract silent - GST additional to tender amount
May 2002
A.G. Simpson Co.
Lienable work improvement assembly line
Susin v. Genstar Development
Limitation period breach of contract unjust enrichment breach of trust
March 2002
All About Construction Ltd. v. 1336555 Ontario Ltd. et al
Sham lien filed by owner invalid personal liability full costs interest on invoices
Central Supply Company (1972) Limited v. Modern Tile Supply Company Limited et al.
Supplier to store no particular improvement designated trust funds sections
not applicable no right to lien no personal liability for individuals
January 2002
Cornerstone Estates Ltd. v. Polaris Restorations Inc.
Dissolution of corporation - lien invalid no retroactivity costs
Elmford Construction Company Limited v. South Winston Properties Inc.
Garnish priority trust Creditors' Relief Act
November 2001
R. Murray
False statutory declaration criminal
Ring Contracting Ltd. v. PCL Contractors Canada Inc.
Fabrication of evidence subsurface conditions all inclusive settlement extras claims
Naylor Group v. Ellis-Don Construction
Supreme Court of Canada tender bid depository
September 2001
West Shore Constructors Ltd. Sandspit Harbour Society
CCDC 2 94 section 2.2.7 and 8.1.1 consultant making decision and acceptance of it mediation and arbitration
Smith-Peat Roofing and Sheet Metal v Matassa Inc.
Pay if paid clause clause must be specific
Environs Landscape Contracting v. Kanaidan Contracting
Pay if paid not applicable to extras unless so states
July 2001
Midwest Management (1987) Ltd. v. B.C. Gas Utility Ltd.
Fairness no duty to bargain in good faith
F.W. Hearns/Actes v. University of B.C.
No contract with subs no liability for pure economic loss
Limitation
PDC 3 Ltd. Limited Partnership v. Bregman + Hamann Architects
Release against architect means release against co-defendants
May 2001
Westeinde v. Murlee Holdings
Quantification of damages site staff project managers initial delay winter inefficiency
March 2001
Tender Negligence
Martel Building Corp v. Canada
No cause of action of negligent negotiation bargain in good faith maybe
January 2001
Agency
John Ziner Lumber v. Kotov
Undisclosed principal
Vacate lien
James Dick Construction v. Durham Board of Education
Holdback - vacate lien general - Francon
November 2000
Bankrupt
Re Zumbo
Bankruptcy breach of trust discharge
Owner's Trust
Structcola Contracting v. Westcola Holdings
Breach of trust owner receiving rent trust funds
September 2000
Seal
Curwood & Sons v. Ottawa Carlton
Tender necessity of seal enforceable CBCA
Interest
NBC Mechanical v. Lundberg Equipment
Interest Act pre-judgment interest contract
July 2000
Trust Me
Allied Plastering v. A. Visca Architect
Personal liability representations forbearance to sue
Trust Action
SE Rozelle v. Groff
No dishonesty necessary trust action deductible expenses personal liability
Limitation Period
Co-Fo Concrete Forming v. 344602 Ontario Ltd.
No limitation period for breach of trust
March 2000
Bonds & Sureties
Labour and material payment bond performance bond bid bond not insurance
Limitation Period
Controls & Equipment v. Ramco Contractors
Payment Bond one year limitation period work of sub is work of general
Delivery
D'Aoust Construction v. Markel Insurance
Bond must be delivered before effective
January 2000
Bird shot again
Bird Construction Winnipeg Condominium
Limitation period
Trust - setoff
Nortown Electrical Contractors v. Bradsil
Datasphere Sales
Arborform Countertops
Setoff - trust claim
November 1999
Going Too Far
Twin City v. Bradsil
Ken Toby v. British Columbia Building Corp
Bid depository tender contract tort
September 1999
Good for the Goose
Naylor Group v. Ellis Don Construction
Scott Steel v. RJ Nichol
Unfair fairness - good faith bad faith bid shopping sub sues general
July 1999
Tender
MJB Enterprises v. Defence Construction
Privilege clause lowest qualified tender unfair damages
May 1999
Vacate Lien
James Dick Construction v. Durham Board of Education
General vacate lien
Publication
For-Con Concrete v. 1120062 Ontario
Publish certificate of substantial Performance delivery of certificate
March 1999
Legal Fees
Universal Plumbing &Heating v. Dynasty Executive Suites
Carriage of lien action salvage costs trust action
Reporting
Tax
January 1999
Last screw
Woodmere v. Sarcevich
Deemed total performance applies to generals only - not subs section 2(3)
Trust
Rudco Insulation v. Toronto Sanitary
Overhead not deductible
November 1998
Substitute and Reduce
Tom Jones Corp v. OSBBC Ltd
Vacate lien
Validity of lien
Electrical Equipment Co v. General Motors
Wrong land trust claim pay down trust monies
Setoff
C & A Steel v. Tesc Contracting
Debt on one project setoff on another
September 1998
Bankrupt
Re Francisco
Breach of trust - debt remains after bankruptcy
Dismissal
Scapitalli v. A. Potvin Construction
Wrongful dismissal notice
July 1998
Subterfuge
Triple R Demolition v. 1188648 Ontario Limited
Adopt contract section 21 Business Corporations Act validity of claim for lien
Lien Strategy
Carosi Construction v. Barrie & District Association
Lien before substantial performance lien after substantial performance
May 1998
Insurance
Madison Developments v. Plan Electric
General's insurance coverage subcontractor covered
Sheltering
Metric Masonry v. Life Centre Non-Profit
March 1998
Change of conditions
Alden Construction v. Newman Bros.
Subsurface condition material change tender documents fair reasonable - claim ion writing - notice liquidated damages
January 1998
Blackmail
Tom Jones Corp v. OSBBC Ltd
Bonds release discharge vacate lien
Sheltering
Chute Construction v. Bicadan Construction
Tender
MJB Enterprises v. Defence Construction
Privilege clause
November 1997
Deceit
Hospitality Investments v. Everett Lord Building Construction
Sue City building plans
Delay
Foundation Company
Tender
George Wimpey Canada Limited v. Regional Municipality of Hamilton-Wentworth
Good faith bad faith hidden agenda
September 1997
Delay
Direct costs lost profit and overhead lost interest on holdback
Tender
Twin City
Ken Toby v. British Columbia Building Corp
Bid depository rules breach
July 1997
What's in a Name
573521 Ontario Inc. v. Waldman
Business Corporations Act - section 10(5) name on contract enforceable personal liability
In Trust
Markborough Properties v. 841202 Ontario Inc. and Rathgeber
Personal liability no beneficiary
May 1997
Fair Play
Colautti Brothers Marble Tile and Carpet v. City of Windsor
Tender privilege clause CCDC 10 damages
Bid Depository
Twin City Mechanical v. Bradsil
Sub suing owner in contract and tort bid shopping
March 1997
Bird in the Hand
Bird Construction
Insurance
Interest
P & D Holdings Ltd. v. Alta Surety Company
Interest is not lienable
Tender
Vipond Automatic Sprinkler Co. v. E.S. Fox Ltd.
Good faith
Excessive Lien
LDR Contracting v. Filion
Damages
Sheltering
Sesco Ltd. v. Life Centre Non-Profit Housing Corp
January 1997
Tender
R. Ron Engineering & Construction (Eastern) Ltd.
Scott Steel (Ottawa) Ltd. v. R. J. Nichol Construction
Naylor Group Incorporated v. Ellis Don Construction Ltd.
Chinook Aggregates Ltd. v. Abbotsford
Vachon Construction v. Cariboo
Acme Building and Construction Limited v. Town of Newcastle
Subcontractor applicability privilege clause good faith
Trust
Heritage Masonry Ltd. v. DeBartolo
Shield Sprinkler & Fire System Ltd. v. Vahuki Construction Inc.
Overhead expenses direct indirect
November 1996
Matter of Trust
Datasphere Sales Ltd. v. Universal Light & Power Corp
Arborform Countertops Inc. v. Stellato
Trust funds trust claims setoff overhead expenses personal liability breach
September 1996
Alternate Dispute Resolution
Mediation arbitration early neutral evaluation ADR CCDC
July 1996
Accelerated Delay
Foundation Co. of Canada v. United Grain Growers Limited
Delay claim acceleration claim damages incorrect tender documents site not ready drawings not compete notice of claim productivity loss extras interest
May 1996
Evidence of Last Work
Belmar Sheet Metal Co. v. 849539 Ontario Inc.
Date from which times runs to preserve lien
Excessive Lien
Tamma Construction Co. v. Brault
Solicitor and client costs - damages
Pay if Paid
Applied Insulation Co. Ltd. V. Megatech Contracting Ltd.
March 1996
Lien Times
Transgas Ltd. V. Mid-Plains Contractors Ltd.
Lien illusory super priority for statutory deductions and GST no interest
Updates
Pay if paid - Timbro
Registration of excessive lien Woodmere (Credit Valley) Limited v. Sarcevich & Ontario Aluminium Glass v. Tavares & Rideau Valley
January 1996
Registration of Excessive Lien
Rideau Valley Constructors Ltd. v. Visa Construction Co. Limited
Extra Time for Lien
Ravell Investments Ltd v. DCLC Developments Ltd.
Time commencement for lien for registration effected by work on extra
November 1995
Pay If Paid
Timbro Developments Limited v. Grimsby Diesel Motors Inc.
Arnoldin Construction & Forms Ltd. v. Alta Surety Co.
Sheltering
Tri-Haven Homes Inc v. O'Neill
Shelter (perfect) under action commenced by another lien claimant
September 1995
Look Before You Leap
Rinaldis v. Landmark Development (North Bay) Ltd.
Priority lien claimants trustee in bankruptcy mortgagee value of land