April 7, 2022 Joining Ontario Breach of Trust and Lien Claims in the Same Action – An Evolving Landscape Printable PDF Introduction It was undisputed law under the Construction Lien Act (the “Old Lien Act”) that a trust claim could not be joined with a lien claim. After all,...
April 27, 2022 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 Printable PDF IntroductionImagine a large, complex, construction project which does not end with claims and disputes. It sounds oxymoronic. The construction industry is mired in disputes.The...
April 19, 2022 Failure of Applicant to Comply with Adjudicator’s Decision Results in Divisional Court Dismissing Application for Judicial Review Printable PDF 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...
April 7, 2022 “Exaggerated Liens” – Abuse of the Process or Not? Printable PDF 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...
April 7, 2022 “Fixed Price” or “Not Fixed Price”? That is the question. Printable PDF 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...
February 1, 2022 Settlor Beware: A Full Settlement of Construction Claims May Waive Your Right to Holdback Funds Printable PDF Key Takeaway The existence of the statutory holdback and trust obligations in the Construction Lien Act, now called the Construction Act (the “Act”), does not separate holdback funds and...
February 1, 2022 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...
Cost Savings and Profit-Sharing – Are They Lienable? December 14, 2021 Printable PDF Key Takeaway Provisions which entitle a contractor to a share of the cost savings are separate and distinct from provisions which entitle a contractor to a share of profits. While profit-sharing arrangements do not give rise to...
Priorities for Liens and Arrears of Prior Mortgages November 3, 2021 Printable PDF Key TakeawayA recent decision of the Ontario Divisional Court clarifies that if a mortgage has priority over a lien, then so too will all arrears in interest, fees, charges, and expenses have priority over the...
Public-Private Partnerships and the Allocation of Risk July 20, 2021 Printable PDF The allocation of risk in public-private partnership agreements is carefully balanced. That balance, however, can be easily disrupted in the wake of a worldwide pandemic. In a recent decision, Crosslinx v Ontario Infrastructure1, the Court tipped...