Articles

About Articles The below articles are published by the Construction and Infrastructure Law Section of the Ontario Bar Association. Members are encouraged to submit articles. About Articles

Editor: James Little

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Supreme Court of Canada in C.M. Callow inc. V. Zollinger Interprets Duty of Honest Performance in Contracts at the Risk of Commercial Uncertainty

  • January 14, 2021
  • Gabriela Nagy, senior litigation counsel, The Regional Municipality of York

In December 2020, the Supreme Court of Canada has released a much-anticipated decision on the contractual duty of honest performance, which principle the SCC recognized as a “new” good faith doctrine, formulated in its previous decision Bhasin v. Hyrnew . In Callow, the SCC was divided in its views on the duty of honest performance, with a five-judge panel rendering the majority decision, three judges concurring and one strongly dissenting.

Construction and Infrastructure Law, Student Forum

Adjudication in Ontario and Beyond: The Role of the Construction Adjudicator

  • January 09, 2021
  • Jackie van Leeuwen, associate, Glaholt Bowles LLP

The changes to the Construction Act, including the introduction of prompt payment and adjudication, were designed, in part, to bring construction projects to completion faster and with fewer payment delays. In the construction context, adjudication is the determination of a dispute arising under a contract by an adjudicator who is a qualified person appointed to conduct an investigation and make a quick decision.

Construction and Infrastructure Law, Student Forum

The New Edition: What the New CCDC 2 Stipulated Price Contract Means for You

  • January 09, 2021
  • Ted Betts, assisted by Magdalena Hanebach (Toronto) and Karina Labelle (Ottawa), Gowling WLG

The new CCDC 2 updates the standard form contract to catch up with recent prompt payment and adjudication changes in Ontario. It also introduces a number of other changes to both reflect more recent trends in contracting and to otherwise streamline the contract. This article provides a brief summary of some of these changes, with references to the corresponding paragraphs of the CCDC 2.

Construction and Infrastructure Law, Student Forum

Was COVID the Impetus for Change the Construction Industry Needed to Embrace the Digital Revolution?

  • January 09, 2021
  • Karen Groulx, Dragana Bukejlovic and Karl Schober, Dentons Canada LLP

The impact of the COVID-19 pandemic has provided the impetus for the increased use of technology in many industries – including the construction industry, which has historically been criticized for having productivity problems and being slow to embrace new technology.

Construction and Infrastructure Law, Student Forum

New Amendments to the Rules of Civil Procedure – Construction Act Implications

  • January 09, 2021
  • Karen Groulx, Dragana Bukejlovic, Dentons Canada LLP

Effective January 1, 2021, Ontario Regulation 689/20 substantially amended the Rules of Civil Procedure. In many ways, the changes reflect the reality of litigation in Ontario since the onset of the COVID-19 Pandemic and focus on a technological shift in the nature of litigation, which was both necessary, and needed. Not only do the changes affect litigation under the Construction Act but they will also have an impact on the prompt payment and adjudication provisions therein.

Construction and Infrastructure Law, Student Forum

The Anti-Deprivation Rule and its Implications for Construction Contracts: Chandos Construction v Deloitte

  • November 11, 2020
  • Bruce Reynolds and Nicholas Reynolds, Singleton Reynolds.

In Chandos Construction v Deloitte Restructuring, the Supreme Court clarified one aspect of bankruptcy law – the scope and application of the anti-deprivation rule – while leaving an unsettled area of contract law – the penalty doctrine – to be resolved for another day. Here, we consider the implications of the newly-clarified anti-deprivation rule as it applies to the construction industry.

Construction and Infrastructure Law, Student Forum

Virtual Litigation in Construction Law: Are you Ready? Best Practices Roundup

  • November 11, 2020
  • Karen Groulx and Dragana Bukejlovic, Dentons Canada LLP

Perhaps one silver lining to the COVID-19 Pandemic has been the accelerated implementation of technologically based tools by both the construction industry and the courts to overcome the hurdles arising from the need to maintain “physical distancing’.

Construction and Infrastructure Law, Student Forum

Case Comment: 2099082 Ontario Limited v. Varcon Construction Corporation

  • June 03, 2020
  • Ivan Merrow, associate at Glaholt Bowles LLP

Not all warranty provisions are created equal when it comes to construction contracts. Individual warranty provisions may vary in length of time, scope, and the degree of fault required to trigger those obligations.

Construction and Infrastructure Law, Student Forum