Tolling Agreements in Construction Contracts – A Practical Solution

Tolling Agreements in Construction Contracts – A Practical Solution Key Takeaway Parties should consider including tolling agreements directly in their construction contracts. Introduction The pressure of a statutory limitation period often drives the commencement of litigation or arbitration before either party wishes to do so, and often before the issue is properly ripe for final […]

Issues with Annual Holdback Release and Lien Expiry on P3 Projects and Beyond

Issues with Annual Holdback Release and Lien Expiry on P3 Projects and Beyond Key Takeaways When is “judicial review” not judicial review? When it’s judicial review of an adjudicator’s determination under the Construction Act. Why is it not judicial review? Because the drafters of the Construction Act used the wrong term when they were otherwise […]

Does a terminated contract “cease to exist”?

Does a terminated contract “cease to exist”? Introduction On April 19, 2022, we released an article on the Divisional Court’s decision in SOTA Dental Studio Inc. v. Andrid Group Ltd.1 to dismiss an application for judicial review because of the applicant’s failure to comply with the adjudicator’s determination. While the Divisional Court’s decision was a […]

Alliance Contracting – A Collaborative Project Delivery Model

Alliance Contracting – A Collaborative Project Delivery Model Originally published in the Spring 2022 edition of the Construction Economist: https://www.kelmanonline.com/httpdocs/files/CIQS/constructioneconomistspring2022/index.html Introduction Imagine a large, complex, construction project which does not end with claims and disputes. It sounds oxymoronic. The construction industry is mired in disputes. The inherent incentives in the typical contract models drive parties […]

Failure of Applicant to Comply with Adjudicator’s Decision Results in Divisional Court Dismissing Application for Judicial Review

Failure of Applicant to Comply with Adjudicator’s Decision Results in Divisional Court Dismissing Application for Judicial Review Our firm was recently successful in having an application for judicial review dismissed as a result of the applicant’s failure to comply with the underlying adjudicator’s determination. The applicant had failed to make payment to our client (a […]

Entitlement to Extras on a Fixed Price Contract

“Fixed Price” or “Not Fixed Price”? That is the question. Key Takeaway Unless there is evidence to the contrary, an agreement for the construction of a home for a stated price will likely be considered to be a fixed price contract, rather than a budget for a cost+ contract, and the onus of proving entitlement […]

“Exaggerated Liens” – Abuse of the Process or Not?

“Exaggerated Liens” – Abuse of the Process or Not? Key Takeaway The recent decision of RJ Concrete v. Eco Depot LTD,1 highlights that courts will unlikely discharge a lien pursuant to section 47 by reason alone that the lien is exaggerated. Provided that the lien claimant acted in good faith, the court will likely exercise […]

Does Project-Specific Wrap-Up Insurance Automatically Protect You as a Subcontractor?

Does Project-Specific Wrap-Up Insurance Automatically Protect You as a Subcontractor? Lessons Learned from the Court of Appeal’s Decision in Capital Sewer Servicing Inc. v. Crosslinx Transit Solutions Printable PDF Key Takeaway Read your contract terms in their entirety and beware of the implications of priority provisions. Where a contract contemplates that insurance will be carried […]