Articles 2023

An interesting case that may be of interest to Ontario lawyers was released recently on February 3, 2016. In it, the UK Technology and Construction Court (TCC) enforced an adjudication award made less than three months earlier on November 18, 2015 in the United Kingdom.

On Friday, February 5, as part of its Institute 2016 program, the Ontario Bar Association hosted a presentation entitled “Good Faith in Construction: Where We Are Post Bhasin”.

It is commonly accepted that providing timely notice in writing of a dispute is essential to the success of a construction claim. A critical term in most standard form construction contracts is the notice requirement for delay claims.

The Supreme Court of Canada has clarified that builders’ liens and statutory trusts are separate remedies available to an unpaid supplier on a construction project.

The Courts want to protect the rights of parties who bundle lien and non-lien claims into one action. Though discretion exists to dismiss an action in its entirety, such discretion ought to be exercised with a view to case law developed under rule 24.01 of the Rules of Civil Procedure.

The new organizing principle of good faith and the specific duty of honesty in the performance of contractual obligations are arguably not modest, incremental changes to the common law. These new duties could introduce an element of unintended uncertainty into construction contract performance where breaches of these new duties are alleged, potentially leading to less predictable results at trial and at arbitration.

The construction and insurance industries may have to wait for further clarity in interpreting and applying the ‘course of construction’ or ‘builder’s risk’ exclusion clauses.