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Legal Matters

Feb 14, 2025

More common legal errors to avoid

Understanding and addressing these 5 common legal errors will help landscaping businesses stay compliant, avoid costly mistakes and ensure a respectful, legally sound workplace.
Oct 23, 2024

Four common legal mistakes landscape companies can't afford to make

To avoid legal disputes and ensure a compliant workplace, landscaping employers should steer clear of common errors such as failing to maintain proper contracts, ignoring ESA requirements, neglecting risks of heat stress and mishandling termination and layoffs.
Oct 5, 2023

‘Cost-Plus’ vs ‘Time and Materials’ contracts and claims in Canada

In this article we will explore how Canadian Courts treat claims for payment under “cost-plus” or “time and material” contracts.
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.
Feb 1, 2021

Ontario updates soil excavation regulations

New rules push for greater reuse.
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.
Aug 1, 2020

Contracts and Covid-19

The impact of Covid-19 on construction has been significant.
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.
Interest begins to accrue from the date of the judgement on the contract dispute, until payment is received.
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.
Contractors are often required to provide bonds for projects.
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.
On-site safety is a must for any construction company.
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
Residential landscape contractors need to ensure their clients  understand what they are agreeing to when signing a contract.
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.
Apr 6, 2016

A case study: Underlying work and contractual clarity

Canadian employers must know that negligence can result in criminal prosecution and jail time — as happened to Metron Construction after this workplace accident.
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.
Sep 18, 2015

Avoid hold-harmless clauses? No! - Legal Matters

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.
Jun 1, 2015

Legal matters - Tendering, changes and common mistake

Apr 1, 2015

Legal matters - Glossary of legalese, part 3

Mar 1, 2015

Of road sale, soybeans and wheat - Legal matters

Jan 1, 2015

Learning from others - Legal matters

Dec 8, 2014

Legal matters - Photos, design and the law of copy and paste

Oct 23, 2014

Maxims and axioms from a construction litigator

Sep 1, 2014

Action can reduce risk of slip-and-fall claims

Step one is to start with a clear contract.
Aug 1, 2014

A case study: Whose work is it, anyway?

A disagreement between landlord and tenant.
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.
Dec 24, 2013

Termination rights under construction contracts

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?
Sep 24, 2013

A glossary of construction legalese: Waiver and Indemnification

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.
Apr 1, 2011

Addressing risk: Fuel prices and material availability

Anticipate changes in your contract.
Mar 1, 2011

Avoid disputes and get paid

Taking care to properly describe the scope of work, in as much detail as possible, will go a long way toward preventing disputes.

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