2020

In the last few years the momentum for change has grabbed hold of the construction industry in Canada, and pulled tight on the reins. Several provinces, as well as the federal government, have been grappling with the issue of prompt payment on construction projects, and trying to determine how best to incorporate the rights and concerns of the most vulnerable parties: the construction trades, who are lower down the ladder.

The American Bar Association Forum on Construction Law held a conference in Boston in October 2017 where leading ABA lawyers gave presentations over the course of two days, reviewing and commenting on the new American Institute of Architects’ 2017 A Series Owner- Contractor documents. What follows are some brief high level comments on these new AIA forms from a Canadian perspective.

The “facilitation payments” exception to Canada’s Corruption of Foreign Public Officials Act was repealed by Bill S 14: An Act to amend the Corruption of Foreign Public Officials Act, effective on Oct. 31, 2017.

David Debenham

In this case the Court of Appeal considered the substantial compliance test in the context of pre-closing bid revisions. A municipal owner had disqualified the lowest bidder because its list of subcontractors, although included as a bid appendix at the time of closing, had been submitted after the sealed bid.

The Construction Lien Act does not specifically refer to salvage costs. However, the practice of awarding salvage costs is one of long standing. Salvage costs are payable out of the lien fund in priority to the claims and costs of the other lien claimants for services provided to the class of lien claimants for their collective benefit, as opposed to work done solely for the benefit of one or more lien claimants.

Damon Stoddard, of Heal & Co. LLP, looks at a landmark 2014 decision from the Supreme Court of Canada, which holds that that there is a general organizing principle of good faith governing the common law of contract in Canada.

Firas Ayoub of Heal & Co. LLP looks at the conflicting conclusions of two recent court decisions examining important fault exclusion clauses in “course of construction” or “builder’s risk” insurance policies.