Legal Matters
Aug 1, 2023
Assessing the enforceability of a pay-when-paid clause in Canada
Landscape subcontractors need to understand that a “pay when paid” or “pay if paid” clause can be applied so they won’t be paid for their work.
Apr 27, 2023
Managing the exclusion and expiry of claims
Generally speaking, the expiry of claims for contractual liability or negligence in Canada are tied to limitation periods set out in various pieces of legislation. In Ontario, for example, the Limitations Act, 2002, establishes a general limitation period of two years (from the date the claim is ‘discovered’) and (in most cases) an outside limitation period of 15 years.
Feb 7, 2023
Construction dispute resolution
Construction litigation in Canada is expensive and time consuming. It’s time for change.
Oct 12, 2022
Managing documents in a digital world
Apple recently announced that users who send texts to other Apple devices with the same operating software will have 15 minutes to either delete or edit the text messages on both devices. This has caused us to revisit the importance of risk management in relation to “documents” in an ever-changing digital world.
Aug 2, 2022
Supply chain risks: Construction/Services contracts
Supply chain issues are currently plaguing the construction and services industries on a worldwide basis.
May 12, 2022
Insurance coverage issues
Liability insurance policies are designed to respond to claims made against the insured by other people. They are not designed to cover damage to the insured’s own person or property.
Feb 8, 2022
CCDC updates Stipulated Price Contract
The Canadian Construction Documents Committee (CCDC), made up of representatives from all levels of the construction sector, prepares standard form construction contracts for use in Canada.
Dec 14, 2021
Municipal slip and fall claim goes to the Supreme Court
The claimant’s contribution to the loss will have to be weighed with the contributions of others.
Oct 12, 2021
When does a deficiency claim expire?
The “plausible inference” test may have consequences for construction
Aug 4, 2021
The consultant’s authority may be broader than you think
It is well-established that a consultant acting as a contract administrator must be impartial and objective.
May 4, 2021
Legislative solutions to slip and fall liability
Ontario’s Bill 118 marks huge step in the right direction.
Dec 1, 2020
Liquidated damages, deposits and forfeiture clauses
Historically at common law in Canada, a liquidated damages clause will be treated as a penalty, and not enforced for public policy reasons, unless the amount is a “genuine pre-estimate” of damages that will actually be suffered.
Oct 3, 2020
Liquidated damages and deposits in construction
Historically in Canadian common law, the courts will not require a party to pay a genuine or true penalty on grounds of public policy.
Sep 1, 2020
Uber, construction contracts and the Supreme Court
To become an Uber driver, David Heller had to accept, without negotiation, the terms of Uber’s standard form services agreement which required him to submit disputes to mediation and arbitration in Holland, under the Rules of the International Chamber of Commerce.
Apr 1, 2020
Contracts in the age of payment and adjudication processes
Prompt payment adjudication will allow construction disputes to be resolved, at least at first instance, through interim and binding determinations made in very tight timeframes.
Mar 2, 2020
Factors to consider in drafting contracts
When creating contracts, revisit the language to ensure the terms and conditions allocate risk and protect the company.
Feb 4, 2020
Creditor proceedings and bond claims
Pursuing the bond claim in the case of insovlencies.
Dec 3, 2019
Remedies and the insolvent debtor
There are options and remedies available to contractors and subcontractors who are owed monies by a corporation or person who appears to be insolvent.
Nov 1, 2019
An insurance claim case study
Legal advice can help avoid potential issues and pitfalls when filing insurance claims.
Oct 7, 2019
Prompt payment and adjudication: A national movement
If an unpaid party receives a notice that it is not going to be paid for services or product, it can send a dispute over the unpaid amount to “adjudication.”
Sep 18, 2019
A damage case study: Beware contract insurance provisions
Parties in a construction contract must read the insurance requirements carefully.
Sep 3, 2019
Case study: Tree removals, boundary trees and nuisance
Disagreement over removal of a boundary tree can lead to legal action
Apr 1, 2019
Managing construction debt collection Part lll: As the project draws to a close
The last in a series of articles on debt collection
Mar 1, 2019
Managing construction debt collection Part II: As construction progresses
Discussing the steps contractors, subcontractors and suppliers can take to address debt collection issues.
Feb 1, 2019
Managing construction debt collection: Part 1
Debt collection issues should be considered from the time you first negotiate or bid for a contract or subcontract.
Jan 14, 2019
Interest rates and contracting
In order to receive a specified rate of interest, the rate should be expressly provided for in the contract.
Nov 1, 2018
Bonds in construction: Part two
An overview of types of bonds, applicable limitation periods and claims against bonds.
Oct 17, 2018
Obligation to supply salt during a shortage
Potential salt shortages means companies need to review their contracts and obligations with customers.
Oct 4, 2018
Bonds in construction, Part 1
A bond secures some or all of a principal’s obligations under an underlying tender document, contract, subcontract or payment obligation.
Jun 14, 2018
Case study: Criminal charges upheld - Legal matters
Proper safety training and systems protect the welfare of our employees and their families, but investment in safety training and protocols is an investment in a company’s success
May 2, 2018
A case study: A contractor's blind reliance on contractual terms
Take your clients through the contract page by page to ensure the client has a complete understanding of how the contract work.
Mar 6, 2018
The potential lien for maintenance work in Ontario - and beyond
A recent case has opened the door for landscape maintenance contractors in Ontario to argue that their services should be considered lienable.
Jan 9, 2018
Case study: Where a written change order is required but not obtained
Good risk management under a contract requires contractors and subcontractors to be thinking about the contract throughout the life of a project.
Jan 1, 2018
Considerations for the design consultant
What is the role of the design consultant, with respect to contractual relationships, the tender process, and review and inspection responsibilities.
Oct 1, 2017
A primer on shop drawings
The need to review and accept the shop drawings ensures the work described in the drawings will meet the needs of the over-all design and integrate properly with the rest of the work.
Sep 28, 2017
Thoughts on liability and property insurance
When purchasing insurance, it is important to work with your broker to understand what is, and what is not, included in the insurance policy
Sep 28, 2017
Payment and adjudication legislation comes to Ontario
New legislation could mean quicker payments and a mandatory adjudication process to resolve disputes
Jul 31, 2017
Revisiting anti-spam legislation
Summarizing the framework for Canada's Anti-Spam Legislation (CASL).
Apr 24, 2017
A case study: Importance of contract terms
The time for planning on contracts is at the outset, when everyone is getting along.
Feb 28, 2017
Embracing the common-sense 'culture shift'
We would like to share a recent experience, which led to a Court deciding whether or not what we were doing fit properly within that shift.
Jan 17, 2017
Good faith and the duty of honesty in contracts
The case also means parties are now clearly held to a standard of honesty, one which many did not believe previously existed.
Nov 10, 2016
Consequential loss goes to Ottawa Part II
Robert Kennaley examines a significant Supreme Court of Canada case regarding the "own work exclusion" and the extent to which a contractors liability insurance policy should cover what is known as consequential loss.
Oct 1, 2016
Back-charges for deficiencies, and fundamental breach
In 2010, the owners of a property in Ottawa hired a contractor to build a home and then install a stone facade around it.
Sep 28, 2016
Revisiting enforceability of notice provisions under a contract - September 2016 Landscape Trades
Courts will not hesitate to enforce technical notice requirements, Robert Kennaley writes. Protect yourself and your business by understanding the details and clauses in each contract you sign.
Aug 29, 2016
A recent slip-and-fall case: One for contractors
Robert Kennaley looks at a recent slip and fall case which reiterated the principle that, at least in Ontario, neither the occupier nor the contractor he hires is responsible to guarantee against slips-and-falls. Rather, what is required is that a reasonable system be in place to guard against such falls — and that the system be followed.
Jun 13, 2016
Consequential loss goes to Ottawa
The Supreme Court of Canada has been asked to consider the line between faulty workmanship and 'resulting' or 'consequential' loss in a CGL (comprehensive general liability) policy.
Mar 1, 2016
Workplace accidents: a sobering case
Passed in March of 2004, Bill C-45 established new legal duties for workplace health and safety, and imposed serious penalties for violations that result in injuries or death.
Jan 1, 2016
Debt collection, Part III At completion
This month we complete our series of articles on debt collection with a discussion of what contractors, subcontractors and suppliers might do to protect themselves as a job moves towards completion.
Nov 1, 2015
Collection strategies during construction
If you are a subcontractor or supplier, I recommend that, in the industrial, commercial or institutional contexts, you inquire to determine if a labour and material payment bond has been posted by the contractor in relation to the project.
Aug 1, 2015
Unavoidable litigation: When cooler heads won't prevail - Legal matters August LT 2015
Case study: Contractor wins a lawsuit, but loses on the bottom line.
Sep 1, 2014
Action can reduce risk of slip-and-fall claims
Step one is to start with a clear contract.
Jun 1, 2014
"It's (quite possibly) the End of the World as I Know It - and I Feel Fine"
Recent developments in litigation in Canada may just not that bad after all.
Apr 1, 2014
Avoid inadvertent warranties
Be careful about giving advice that goes beyond your scope of expertise or experience.
Mar 1, 2014
Manage driving risk simply and effectively
Sound risk management should include driver education programs as well as policies and procedures directed at ensuring that good driving practices are implemented.
Nov 29, 2013
Contracting with a condo corporation
Does the person you are dealing with have authority to make approvals on behalf of your client?
Aug 7, 2013
Of copyright, property, privacy and advertising
Obtain homeowner consent before using images of your work on the public domain.
Jun 1, 2013
Managing construction debt collection as the project draws to a close
The last in a series of articles on debt collection issues.
May 15, 2013
Managing debt collection negotiation
Protecting against overdue accounts as construction progresses.
Apr 1, 2013
Managing construction debt collection at the negotiation stage
Planning ahead in case of the need for debt collection can better assist a business to get paid.
Mar 1, 2013
Be Prepared: A litigation primer
Steps you can take to be better prepared and protected in the event a dispute.
Jan 1, 2013
Constructing a clear contract
Take care in negotiating indemnification and insurance provisions in a contract.
Nov 1, 2012
Introducing a glossary of construction legalese
Explanation of some common legal and contractural terms used in tender packages, insurance policies, legislation, and more.
Sep 1, 2012
Non-compete, non-solicitation and confidentiality clauses in employment contracts
Establishing the employment contract.
Jul 31, 2012
Defining responsibility
Managing the risk of change in snow removal work is something contractors need to think about.
Jun 1, 2012
Of backcharges, deficiencies, warranties and guarantees — Part 2
Considering the difference between "guarantee" and the concept of "warranty".
May 1, 2012
Of backcharges, deficiences, warranties and guarantees
Demystifying the confusion with backcharges, deficiencies, warranties and guarantees.
Apr 1, 2012
Risk management and project structure - part 2
The key feature that distinguishes these project structures from the other two is that, when properly set up, the project or construction manager does not actually perform the physical work.
Sep 1, 2011
Protect yourself with construction liability insurance
Liability insurance policies are designed to respond to claims made by other people and generally provide the insured with two types of coverage, the duty to defend and the duty to indemnify.
Jul 15, 2011
Hold-harmless and indemnification clauses in winter maintenance contracts
The question of who is an occupier for the most part turns on who has responsibility for, or control over, the premises, and depends on the facts of each particular circumstance.
Jun 1, 2011
Think before you stop work
Situations can arise where a contractor or supplier might stop work for various reasons.
May 1, 2011
The Prime Contract and subcontractor obligations
If subcontractors are to be bound by a prime contract, they need to understand its terms.