The Dog Ate my Homework! The Duty to Keep Proper Records Intro The recent case of Shaheen Custom Homes Ltd. v Brennan, 2022 BCSC 716, exemplifies a situation that homeowners, builders, subtrades, and those alike could encounter in failing to maintain proper records during a construction project. The Facts This dispute…
ANNOUNCEMENT Kuhn LLP is pleased to announce that both Anne Cochrane and John Wiebe have joined the Firm’s partnership, effective July 1, 2023. Anne joined the firm as an associate after her call to the British Columbia bar in 2016. Anne serves a wide variety of individual, corporate, government, and charitable clients, guiding them through…
You’ve Got (or Might Not Have) Mail! Securing a claim through a builders lien can often be the difference between getting paid for your work or eating the cost yourself. However, builders liens expire after a certain duration of time unless specific steps are taken. If those steps are not followed precisely within the time…
That’s Totally Deficient There are at least three certainties in every contractor’s life: death, taxes, and disputes around construction deficiencies. Disagreements over whether work is, in fact, deficient, can be difficult to resolve. It is not uncommon for homeowners to have unrealistic expectations of perfect construction practices. At the same time, there is…
Walk On: The Inadvertent Effect of a Mutual Termination It is not uncommon to encounter a dispute in a cost-plus project over the escalating cost of work. When a dispute arises, how a contractor handles the termination of the construction contract (be it written or verbal) can be vital in determining what types of…
Revoking Building Permits and Being Reasonable When municipal bylaws change, such changes can impact the way a business will make decisions about accepting or rejecting project opportunities. The recent case of Mullany v. Squamish-Lillooet, 2019 BCSC 1581 considered a scenario where a bylaw was amended after an application for a building permit had been…
Fire! Fire! Force Majeure Clauses Particularly since the outbreak of the COVID-19 pandemic, contractors and other companies are increasingly more interested in implementing force majeure clauses in their contracts. A force majeure clause operates when uncontrollable circumstances or events (e.g. war, natural disasters, or extreme weather) prevent a party from fulfilling their obligations under a…
No Room for Mistakes: Or Is There? Strict compliance with the Builders Lien Act (“BLA”) is generally required to ensure that builders liens are enforceable. So, what happens when there are errors on the lien or mistakes with other procedures under the BLA? The case of Toska Woodworking Inc. v Balazadeh-Nayeri, 2020 BCSC 1378…
Standard Form Contracts and the Mysterious Amendment Many contractors appreciate the importance of utilizing written contracts for their construction and renovation projects. Standard form contracts such as those developed by the Canadian Construction Documents Committee (the “CCDC”) can be particularly useful when employed correctly. There are risks, however, with blindly using standard form contracts that…
Double Trouble: Defining the Relationship Before the Bill Doubles When urgent construction work is required, it is all too easy to hastily move forward without properly defining the contractual relationship and terms of payment. The recent case of All Out Contracting Ltd. v. Gourlay, 2018 BCSC 481 addresses a common scenario where work proceeds…
NEW PARTNER We are pleased to announce that Andrew Delmonico, practicing through a law corporation, has joined the partnership of Kuhn LLP effective July 1, 2019. Many of you know Andrew, who has been an integral and important part of our team since 2012.
It is well known in the construction industry that a separate lien claim exists against the holdback fund created by section 4 of the Builder’s Lien Act (the “Act“). Liens against the holdback, commonly referred to as “Shimco liens”, provide an important source of security for unpaid subcontractors where the time period for filing a lien…
Frequently, an important step before work begins is to determine what the price will be or how it will be calculated. The case of Kareway Homes Ltd. v. 37889 Yukon Inc. is a good example of how failing to clearly address this issue in a written contract can result in serious financial consequences for the contractor.…
In cases involving the discharge of a builder’s lien, a critical question often becomes whether or not the lien was filed within the applicable time period under the Builder’s Lien Act. A recent case from the BC Supreme Court suggests that a trade may still file a lien even where it has failed to work on…
Trying to hammer out all the little details before a construction project begins can seem like an unnecessary barrier to getting the job done. At times, it may even be tempting to dispense with a written contract altogether and just focus on the big picture, hoping that all the details will fall into place later…
Many companies carry on business under multiple corporate structures. This can make it difficult to determine exactly who you are contracting with. This affects who is actually responsible for doing the work. It can even deprive you of your of legal remedies if the deal goes sour. FACTS Park v. K.S. Mechanical Ltd. involved an appeal…
In the rush to get a construction project underway, significant pressure may exist to close deals quickly. Sometimes, it might even appear necessary to sign a contract before all the terms have been finalized in a detailed written agreement. Although this practice may increase expediency in the short-term, a recent decision of the Alberta Court…
There can be many side agreements and understandings during the course of construction. If you do not properly document them, however, they may not be enforceable. Facts: Chateau Granville Partnership v. Chateau Granville Inc., et al. involved a dispute between the owners of the Chateau Granville Hotel (“Chateau”) and the construction manager it hired for a renovation…
When negotiating a building contract, it can sometimes be difficult to identify the exact moment when a deal has been reached. Sometimes, a person may feel like a “handshake deal” is not a deal at all, but simply a friendly conversation. In Rivera v Metropolitan Construction Ltd., the Court provided some guidance for determining when a legally…
It’s not uncommon for suppliers in the construction industry to sell supplies on account. When they do this, a personal guarantee is often required. A recent case shows that despite some novel arguments, the principals of the company were personally liable for the debts of their company. Facts: In Convoy Supply Ltd. v. CDN Roof Doctor…
Submitting a bid for a project becomes a binding contract the moment it is submitted to the contractor/owner for consideration. Even if your bid on a project is too low, you can be stuck with it. Depending on the project and the value of the contract, a careless price calculation in a bid could be…
One of the best ways you can protect yourself personally is to conduct business through a limited liability company. However, if you do not let your customers and suppliers know that they are dealing with a limited liability company, you can personally be on the hook. Depending on the type of work you do and…
What happens if you discount an invoice and are not paid? Can you retract the discount and bill for the full amount? A recent decision from the BC Supreme Court shows that you may not be able to do so. FACTS A West Vancouver man (the “Homeowner”) entered into an agreement (the “Contract”) with a…
Frequently the courts are called upon to determine if someone has suffered damages, and if so, how to calculate them. Doing so can be like trying to guess the price on the game show, The Price is Right. A recent case, however, provides some helpful guidance on what the courts will generally consider. FACTS In…
The goal in signing a contract is generally to see it through to completion. However, contracts often contemplate a method for terminating the contract in certain circumstances. Recently, the court clarified the law surrounding this issue. Facts In 2001, an owner hired a general contractor (the “Contractor”) to complete a home building project in West…
Despite the best intentions, a construction project can be delayed beyond the anticipated completion date. If the matter proceeds to litigation, the court must decide the appropriate method for determining what damages, if any, should be awarded for breach of contract. In Thai House Restaurant (North Vancouver) Ltd. v. Lui’s Millwork Ltd., 2011 BCSC 964 [Thai House], the…
Generally speaking, an owner, and anyone who is primarily liable on a contract or subcontract, must retain a holdback of 10% under the Builders Lien Act. In 2002, the BC Supreme Court surprised many legal observers when it held that a someone who was owed money on a project could not only claim a lien…
When does a quote become a binding contract is a common question. Recently the British Columbia Supreme Court provided some helpful guidance. FACTS In 2003 the construction of a house in Kelowna, BC was nearing completion when the original tile installer walked off the job. Exclusive Flor Sales Ltd. (the “Contractor”) is based in Surrey,…
The Supreme Court of Canada delivered a HUGE win for general contractors yesterday. In a much-anticipated decision, the Supreme Court of Canada held that an insurer did in fact owe a duty to defend a general contractor for claims made as a result of negligent subtrades. After years of being denied coverage for these claims, this decision…
Despite what appears to be a growing prevalence of divorce in our society, there is no question that the fundamental issues of divorce have been plaguing societies for centuries. At their core are questions of fault. Is one person to blame when a marriage breaks down? If so, does the law punish the wrongdoer in…
What does “lockup” mean and when is a project at the “lockup” stage? These questions were recently the subject of a dispute before the BC Supreme Court. FACTS In Skadberg Construction Ltd. v. Buschholz, 2010 BCSC 869, Skadberg Construction (the “Builder”) and Buschholz (the “Homeowner”) entered into a construction agreement based on the precedent provided by…
Recently, there was a BC Supreme Court decision that dealt with the consequences of accepting a non-compliant bid. The judge also had some stern warnings for the parties about undermining the integrity of the tendering process when parties do not follow the rules. FACTS In Cranbrook Interior Woodwork Ltd. v. D & T Developments Ltd.,…
On March 9, 2010 the Supreme Court of British Columbia weighed in on yet another church dispute in our province (Viitre v. St. Peter’s Estonian Evangelical Lutheran Church, 2010 BCSC 296). Try though they might, churches in B.C. seem to keep ending up before the courts. There are three lessons from this latest conflict that churches…
When a project is nearing completion, it is important to properly issue a certificate of completion and give adequate notice to contractors and subcontractors. As a recent decision of the BC Supreme Court shows, one owner found this out the hard way. FACTS In Alterra Property Group v. Doka Canada and Peri Formwork Systems, the owner…
One of the big questions in tendering law in recent years is how an owner can protect themselves against unsuccessful bidders when they want to accept a non-compliant bid. This question has been making its way through the legal system in Canada and the Supreme Court of Canada has recently set out a new test.…
If you want to limit your liability, you must have strong contracts. That is what a recent decision of the BC Supreme Court told an unfortunate home inspector, handing him a judgment in the amount of almost $190,000. FACTS In the case, two individuals (the “Purchasers”) entered into an agreement to purchase a house in…
As the school year draws to a close, you may be thinking about sending your children to camp this summer. Many religious organizations operate summer camps, which usually include some sporting activities. A recent policy statement from Canada Revenue Agency (CRA) provides some indication as to whether or not these sporting activities will be considered…
When disputes over alleged deficiencies arise during construction, the paying party will quite often refuse to pay any further money until the deficiencies are fixed. When this occurs the contractor (or subcontractor) will usually refuse to do any further work until they are paid. The result can be like trying to solve a murder mystery game of…
What happens when a child under 16 refuses a medically necessary procedure that may save her life in order to uphold her strongly held religious beliefs? Until recently, the law was not clear as to whether paternalistic child protection legislation violated the Charter of Rights and Freedoms. The Supreme Court of Canada has, however, now set…
For the past 29 years in Alberta, Hutterite communities have been exempt from the requirement to have their photograph taken in order to obtain a driver’s license. On July 24,2009, the Supreme Court of Canada put an end to that. The two Hutterite communities in question object to having their picture taken on religious grounds.…
As the economy ebbs and flows, the status of current construction projects may fluctuate and work may stop for 30 days or more at some points. In these circumstances it can be difficult to know whether or not a project will be completed or whether it has been abandoned. This can have a significant effect…
On January 23, 2009, the Supreme Court of British Columbia released their decision in Lutzv. Faith Lutheran Church of Kelowna, 2009 BCSC59, a case concerning a church fight gone terribly wrong. In early 2007, the Faith Lutheran Church of Kelowna was a small congregation of 110 members. They had recently hired a new pastor. Their National Convention…
Kevin Boonstra, Ian Moes, Andrew Delmonico, Jonathan Maryniuk and Anne Cochrane teach our Construction Law Course in various parts of British Columbia. This course is offered in conjunction with the Canadian Home Builders Association of British Columbia’s Certified Residential Builder Program. For more information on the Construction Law course and to register for the course…
Can Government Scoop Builders’ Lien Holdback for Tax Claims? Who gets the holdback monies in a face-off between Builders Lien claims, a Contractor’s back charges and a claim against those funds by Canada Revenue Agency (CRA)? A recent British Columbia Supreme Court case, heard on September 11-12, 2008, does much to clear up the area of…
Suppliers, subtrades and others in the construction industry often question the potential benefit of filing a Builders Lien. Owners and Owners, on the other hand, are often faced with having to obtain discharges of the liens in order to obtain financing or construction draws. A recent case from our Court of Appeal highlighted issues that arise when…
There is a wide spectrum of voluntary associations in British Columbia. They range from social clubs to sporting organizations to religious groups to professional associations. But how are the members of these voluntary associations supposed to be treated? A recent decision of the British Columbia Supreme Court confirms that your parents were right – you…
You buy insurance to protect you if things go wrong. Last Thursday the BC Court of Appeal confirmed that insurance does not defend builders against many claims arising due to negligent subtrades. The Court held that Progressive Homes Ltd. (“Progressive”), and hundreds of other builders in BC, did not have the umbrella insurance they thought they…
Trinity Western University is a private post-secondary university that teaches from a Christian perspective. In 1995 it applied to the British Columbia College of Teachers (BCCT) for permission to award baccalaureate degrees in education. The BCCT refused to grant permission, arguing that the university’s code of conduct was discriminatory and that those graduating from Trinity…
In 1997 the Board of Trustees of School District No. 36 (Surrey School Board) refused to approve three books depicting same-sex parented families as supplementary learning resources, for use in teaching the family life education curriculum on the basis that, among other things, the books would create controversy. Their decision was appealed and we represented…
During a period of protest in 2002 about the lack of social housing for the poor and homeless in Vancouver, some of the protesters entered a building that had formerly housed the Woodward’s Department Store. We represented the owner of the building, the Provincial Rental Housing Corporation, and obtained a court order on short notice…
In 2007 the Cultus Lake Waterpark commenced a $6 million dollar expansion with the approval of the Cultus Lake Park Board. Some local members of the Cultus Lake community challenged the actions of the Park Board and brought a court action to stop the construction of the expansion, which was already well underway. We successfully…
The Homeowner Protection Office is a provincial Crown Corporation that is entrusted with the responsibility of providing consumer protection in the residential construction industry. They are responsible for administering the Homeowner Protection Act, which includes the licensing of residential builders and monitoring of third-party home warranties. In 2001 two developers applied to the court for…
Eighteenth century jurist William Blackstone said “the law is the embodiment of the moral sentiment of the people”. The result in the “three parents” case from the Ontario Court of Appeal tells us much about modern Canadian morality. On January 2, 2007, the Ontario Court of Appeal released its decision in A.A. v. B.B. and…
Religious freedom without freedom of expression is not freedom at all. Many Christians are members of a professional association, such as teachers, nurses, doctors, lawyers, accountants, architects and others, where codes of conduct govern their behaviour. But are these individuals free to express their religious views without being subject to disciplinary action by their association?…
Two recent decisions from the Supreme Court of Canada, related to the Criminal Code offence of “keeping a common bawdy house”, are important markers along the road to moral and legal relativism. The use of the archaic term “bawdy house” should be an early indication as to how an “enlightened” court might view this criminal…
In April of this year the Canadian Medical Association Journal published an editorial article entitled “Ending life with grace and agreement”. Sadly, the article seemed to demonstrate neither. The article concerns the case of Samual Golubchuk, an 84-year-old Winnipeg man who found himself at the centre of a dispute when his doctors wanted to remove…
Remarkably, the answer is “No”! At least not always, according to the Ontario Human Rights Tribunal that recently held that a large Christian ministry in Ontario could not require their employees to sign a Lifestyle and Morality Statement that reflects orthodox teachings of evangelical Christianity. The primary reason: because they do not primarily serve other…
Remarkably, the answer is “No”! At least not always, according to the Ontario Human Rights Tribunal that recently held that a large Christian ministry in Ontario could not require their employees to sign a Lifestyle and Morality Statement that reflects orthodox teachings of evangelical Christianity. The primary reason: because they do not primarily serve other…
Churches, along with many other organizations, often fail to recognize the need for great care when entering into contracts. A recent British Columbia Supreme Court decision shows the types of problems that can result from poorly drafted agreements. In 1989 the St. Vartan Armenian Apostolic Church of British Columbia entered into a contract with the…
With the Canadian dollar increasing in value in comparison to the American dollar, many British Columbian construction companies are looking to purchase equipment in the United States. A recent case illustrates the need to specify in the contract what country’s law will apply to the contract and in which country any dispute will be heard.…
Over the past 25-30 years the tendering process has undergone an evolution that has seen some dramatic shifts in the legal analysis. This started in 1981 with the Supreme Court of Canada’s decision in Ron Engineering case that established the Contact A (the contract formed by the tender document and responsive bid) – Contract B…
“…the tongue is a small part of the body, but it makes great boasts…the tongue also is a fire…” James 3:5 (NIV) Last year, we reported on a Supreme Court of British Columbia decision chastising a Church over its failure to comply with its own bylaws. A former elder had sued the Church when he…
In the last issue we considered the recent decision of the BC Court of Appeal in Tercon Contractors Ltd. v. British Columbia (“Tercon”), which held that an owner could accept a non-compliant bid because the exclusion/privilege clause was drafted to allow for this possibility. This was not good news for general contractors as it gives…
The Latin maxim “caveat emptor” or buyer beware is a warning that strikes fear into the heart of many a homebuyer. It is also the principle behind much of the law relating to potential construction defects in a property. Generally we accept that it is the buyer’s responsibility to satisfy themselves about the quality of…
Giving money to a church, Christian work or other charity usually requires trust. You are trusting that the gift be used for the designated purpose. Many folks want to be generous, but what happens if that trust is broken? Trust is a legal concept and the action of trusting someone forms the basis of what…
Giving money to a church, Christian work or other charity usually requires trust. You are trusting that the gift be used for the designated purpose. Many folks want to be generous, but what happens if that trust is broken? Trust is a legal concept and the action of trusting someone forms the basis of what…
Within the construction industry context, an “estimate” is defined as “a statement of the approximate charge for work to be done, submitted by a person or business firm ready to undertake the work” by www.dictionary.com. By definition, an estimate is approximate, so the question begs: does a contractor have some leeway to charge more than…
Those involved in construction projects often face the necessity to remove liens filed pursuant to the Builders Lien Act. Sometimes this is to enable mortgage funds or construction draws to flow, and other times in order to simply remove inflated, out of time, or fraudulent liens. Despite this common situation, it seems rare that people…
A recent British Columbia Court of Appeal decision highlighted what is acknowledged to be a frequent problem in construction cases and “one that has admittedly no easy solution”. The problem: how to measure damages for breach of a construction contract; in this case, where deficiencies are alleged? FACTS A contractor built a home for an…
The Christian community has an on-going internal debate about the appropriateness of using the courts to protect or advance rights. People often quote I Corinthians 6 to me as authority for the proposition that Christians ought to stay out of the civil courts entirely. I do not want to debate that here as the scripture…
The Supreme Court of British Columbia recently took a local church to task over its ongoing disputes and failure to comply with its own bylaws. On April 18, 2007, Justice Smith delivered a somewhat gentle but nonetheless embarrassing rebuke of Church members and their ongoing arguments over compliance with legal requirements governing church process (these…
Contractors, business people and professionals alike often spend sleepless nights worrying about the potential of being sued and dragged through expensive litigation because of actions taken by themselves or some employee, even from a long time ago. Besides buying insurance, the effectiveness of which may be questionable in some circumstances, and trying to be careful,…
The convergence of recent court decisions and news headlines speaks of the continuing evolution of homosexual rights, not just in our country but internationally. Based on recent experience, the growing body of law and public opinion on this topic create the potential for inevitable and ever-increasing conflict between religious freedom and legally recognized societal values. …
The past few weeks have been difficult ones in Canada when it comes to the accommodation of religious belief and practice. The Town of Hérouxville in Quebec has published “Standards” for its community. While these “Standards” purport to welcome all people without discrimination, the town’s stated goal is to inform new arrivals into the area…
The Courts have been slow to interfere in conflicts between non-profit entities, including those incorporated under the Societies Act of British Columbia (such as many churches), and their members. But a case decided by the Supreme Court of British Columbia on December 6, 2007 shows that this reticence may be changing, and that membership, even…
This time of year brings plenty of opportunity for clinking of glasses and sharing a sip (or two) of your favorite Christmas cider with customers, fellow workers, friends or family members. Most of us are responsible enough to avoid allowing our guests to become part of this season’s statistical carnage, but what happens when a…
A recent case identified a common problem in construction: doing work for friends. When skilled construction people agree to help out friends they need to remember that there are the same (and even greater) risks involved as when they are working commercially. Forget the basic business practices at your peril. FACTS Mr. P was a…
What happens when a contractor (or subcontractor) decides to quit that business altogether or stops buying liability insurance? Does uninsured liability still loom? Must the contractor maintain insurance forever? Or is the fact that he had insurance when he was conducting his business enough to protect him? As with most answers in things legal… it…
In British Columbia, a provincial statute provides for a mandatory exemption from property taxes for places of worship and the land on which the building itself stands. Local municipalities have the discretion to grant a permissive exemption for the land surrounding the place of worship (such as parking lots or “non-worship” space). On August 4,…
As most experienced general contractors and subtrades know, the tendering process creates rights and obligations that must be taken seriously. A recent case involving a dispute over the awarding of a steel work subcontract illustrates well the legal pitfalls of not giving a low bidder the contract (or subcontract in this case) on the basis…
Recently, the Supreme Court of Canada issued their decision in the Jesuit Fathers of Upper Canada v. Guardian Insurance Co. of Canada case, concluding that the Guardian Insurance company was under no duty to defend the Jesuit Fathers of Upper Canada against claims of sexual abuse. The Jesuits operated and administered an Indian residential school…
Recently, the Saskatchewan Court of Appeal attempted to shed light on how the objective reasonable person understands the Bible, and in particular, whether the Bible is capable of being hate speech. In June of 1997, in response to an upcoming gay pride week, Hugh Owens decided to publish the first of what was to be…
Does your business issue invoices requiring the payment of interest on outstanding arrears? Do those terms match a current and valid credit agreement between your business and the customer? Although you may think that you are entitled to interest at the rate stated on your invoice, the recent case of a wood supplier and cabinetmaker indicates…
The recent case of a homeowner and contractor demonstrates, yet again, why contractors, even on small jobs, should make sure that they cover off basic contractual points in writing. The alternative: rough justice. FACTS On April 30, 2002, Ms. Ford and Mr. Chan met and agreed verbally that Chan would build an English country garden…
The anticipated decision of the British Columbia Human Rights Tribunal was handed down on November 29, 2005 in the case involving the Knights of Columbus refusal to allow their hall to be uses by a homosexual couple for a celebration of their marriage. This much anticipated ruling is a ‘must read’ for those religious groups…
The Supreme Court of British Columbia recently re-defined “adultery”. Traditionally, there has been a reasonably clear definition and understanding of adultery for the purposes of obtaining a divorce (the Divorce Act, section 8, states that a spouse may seek an immediate divorce based on the grounds of adultery). It was limited (based on the traditional…
A long hot summer resulted in some different Court decisions. But the very recent British Columbia case (July 2005) involving an African hunting safari of exotic game and a taxidermist is evidence that the law, even when applied to strange facts, can bring about just results. FACTS In this case three men travelled to Zimbabwe…
Deeply held religious faith permeates every sphere of life. Spiritual people cannot effectively segregate their religious belief from their mundane, daily life. As has been discovered by Chris Kempling, when one’s religious beliefs contradict secular values, full participation in the life of one’s community can be jeopardized. On June 13, 2005 the B.C. Court of…
Does defective work always result in liability? A recent case between a homeowner and a contractor shows that a contractor may not necessarily be liable for damage to a new home. FACTS In this case the homeowner purchased a building lot and hired the contractor to build a custom home. Within two years after construction…
The political machinations around the redefinition of marriage by the federal government have been fascinating to watch. The Liberal minority government appears to still be committed to passing the legislation. Irwin Cotler, the Justice Minister has met with Liberal back-benchers to try and assuage their fears, but at least publicly says that the legislation will…
Old joke, but it made for a difficult and expensive lesson in a recent case involving a drywall contractor. FACTS The drywaller verbally agreed to mud and tape about 21,000 square feet at a fixed price per square foot. Unfortunately, the drywaller didn’t see the job site until he arrived to begin work. The boarding…
Now there is a philosophical question! But it is also a legal one. In the law of contracts, “agreements to agree” are not enforceable. However, there are many situations where all terms of an agreement are not or cannot be determined or specified at the time of the original deal, and are left open to…
Often those starting up or otherwise involved in construction businesses do so in partnerships. But rarely is sufficient thought given to the dangers of doing so, as was painfully experienced by an innocent partner in a case decided by the British Columbia Supreme Court recently. FACTS Two architects worked together for years in operating a…
It seems that the Courts have to confront the balancing between religious freedom and the equality claims of gays and lesbians with increasing frequency. Last month, the issue was whether a gay student could bring his boyfriend to the prom at a Catholic school in Ontario. On June 17, the Ontario Superior Court of Justice…
Recent actions by Children’s Aid Society workers in apprehending children from parents of the Aylmer, Ontario, Church of God, has again raised the question, “Do parents have the right to spank their children?” Whether this is a parenting issue or one where religious freedom is called up, court decisions will likely influence how Christian parents…