Articles 2021

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Today

Breach of Trust in Ontario Construction Projects and the Timeline to Pay

  • October 28, 2021
  • Ivan Merrow

In the recent case Clearwater Structures v. 614128 Ontario Ltd. o/a Trisan Construction, 2021 ONSC 5601 (CanLII), the court suggests that in addition to obligations to segregate and hold funds for trust beneficiaries in the Act, there may also be circumstances where there is an implied obligation to pay those trust funds in a timely fashion.

Construction and Infrastructure Law, Student Forum

Carillion, the Companies' Creditors Arrangement Act and Construction Lien Act Trusts: Confusion (again) regarding certainty of subject matter and commingling of funds

  • May 26, 2021
  • R. Bruce Reynolds, Kathryn E. Kirkpatrick, Nicholas Reynolds

The Companies' Creditors Arrangement Act proceedings involving Carillion Canada and related entities have been an ongoing area of interest for the construction industry since proceedings began in early 2018. Recently, Ernst & Young, (in its capacity as Monitor of Carillion Canada in the CCAA proceeding), brought a motion seeking a declaration that certain funds received in relation to various construction projects were deemed statutory trust funds pursuant to the Construction Lien Act.

Construction and Infrastructure Law, Student Forum

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