By Corbin Devlin   Selecting the right construction contract model for a particular project can be the difference between harmony and discord among project participants, and the difference between the financial success and failure of the project. Too often, we see litigation arise because of different expectations or understandings as to risk allocation, which is primarily a factor of contract strategy. Contract Models What does contract strategy mean? It is the selection (and perhaps customization) of the contract model or models to be employed on a particular construction project. For e ..read more

By Sarah Levine and Corbin Devlin It is a relatively straight forward and well understood concept that at the outset of parties entering into a contract for services, they may choose to have any dispute that arises to be dealt with by alternative dispute resolution (“ADR”), such as an arbitration process, and include a clause in their agreement to that effect. What is perhaps not so straightforward is what recourse a party may have in the event it does not agree with the arbitral award rendered. The type of appeal that may be brought from the decision of an Arbitrator is often very limited, d ..read more

Lien Rights –When the Developer Doesn’t Have an Interest in the Land In an earlier article, we warned of the risk of loss of lien rights if a transfer of land occurs during construction.  A 2018 court decision reminds us that there is also a risk of loss of lien rights if the party contracting the work doesn’t have a legal interest (ownership) in the land, such as when (for example) an expected transfer of land doesn’t go through.  The Recent Example In Georgetown Townhouse GP Ltd v Crystal Waters Plumbing Company Inc, 2018 ABQB 617, the developer/owner Georgetown agreed to sell 4 ..read more

By Corbin Devlin A frequently-asked question is, can the Alberta builders’ lien holdback be used for the correction of deficiencies? The short answer is, the holdback can be used for correction of deficiencies, only after the statutory purpose of the holdback is expired.  The Builders’ Lien Act does not contemplate using the statutory holdback for anything other than security for payment to lien claimants. But the Builders’ Lien Act does not dictate what happens to the statutory holdback after the lien holdback period expires. Read on for further explanation… Legitimate Setoff The firs ..read more

 by Jennifer Davis Often the steps taken prior to litigation commencing, or even disputes arising, can assist in mitigating potential damages. Preservation, contemporaneous recording, and organization of records is not only important during the litigation process but is an integral part of any strategy to successfully defend all possible claims and minimize overall liability. How documentation is preserved and organized is partially dependent on what type of claims may be expected arising from a dispute. Regardless of the dispute, the importance of contemporaneous record keeping cannot be ..read more

 by Broynn Rosser Verbal contracts are generally just as valid as written contracts. However, practically speaking, verbal contracts can be hard to enforce and unnecessarily complicate disputes between parties. Verbal contracts in the construction industry can be even more problematic given that construction related agreements can be inherently more complicated. The recent Alberta Provincial Court decision, Saville Drilling Services Inc v Alpha Construction Inc, 2021 ABPC 125(“Saville”) serves as a cautionary example of the dangers associated with verbal contracts. In Saville,the Defendan ..read more

by Jennifer Davis Privacy concerns are often overlooked when considering an organization’s risks and liabilities. Internal policies and mechanisms, if not structured properly, can leave an organization open and vulnerable to breaches ranging from inadvertent disclosure of information to cyber-attacks and data breaches. Overview The Personal Information Protection Act (“PIPA”) is Alberta’s guide to the protection of an individual’s personal information by organizations in the private sector. For the most part, PIPA will apply to all organizations in Alberta that are not public bodies and do not ..read more

 by Graham Henderson A recent decision of the Alberta Court of Queen’s Bench provides a reminder that supplying work and materials to a project does not necessarily result in builders’ lien rights. When assessing lien rights, the Court will consider contextual information, including details about the nature of the project. Does the project involve the construction of something on the lands, or is it a maintenance project? Such a distinction may dictate whether lien rights exist or not. Court Decision In Young EnergyServe Inc. v. LR Ltd., LR Processing Partnership (“EnergyServe”), the Cour ..read more

 by Corbin Devlin A new land titles registration process is causing grief for all those involved with builders’ liens. Effective April 1, 2021 the process for all land titles registrations in Alberta underwent significant changes as part of Provincial government efforts at Red Tape Reduction. Section 14.1 of the Land Titles Act creates a “pending registration queue.” Builders’ liens are no longer registered on the day they are submitted (contrary to past practice). However, registrations are guaranteed priority based on the date of submission; i.e. a lien will apparently be accepted for r ..read more

 by Shaun Chorney, Student-at-Law In our previous article, we discussed the general principles involved in determining when architects and engineers can be held personally liable for mistakes in design. This article will expand on the theme of personal liability in design by focusing on specific strategies which can reduce exposure to personal liability. The most common cause of action which retains a realistic likelihood of success in a claim against individual design professionals is the tort of negligent misrepresentation. This article will focus on reducing exposure to this parti ..read more