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Waiving “formalities” in a Procurement Process: What Owners and Bidders Need to Know

Posted in Municipal

It is not unusual for tender documents to reserve discretion to an owner to “waive formalities” in accepting a bid.  Such discretion needs to be interpreted in the context of the requirement that an owner may in no circumstances accept a “non-compliant bid”.  But, without further definition, what is considered a “formality” that may be waived?  What risks does an owner in a procurement process face if it waives a formality, or alternatively, if it refuses to exercise its discretion to do so?  These are the questions the Ontario Court of Appeal grappled with in Rankin Construction Inc. v. Ontario.Continue Reading

“I’ve been working on the subway…” When can you lien a public transportation infrastructure project

Posted in Municipal

As Ontario governments continue to invest in transportation infrastructure, the question arises:  Can these public projects be subject to liens    by the trades who work on them?  The short answer is “yes, potentially”.  That was the finding of Master Short in the decision of Advanced Construction Techniques Ltd. v. OHL Construction, Canada, 2013 ONSC 7505.

In this case, a lien was registered against York University by Advanced Construction Techniques (“ACT”), a subcontractor who was working on the extension of Toronto’s University/Spadina subway line through York University lands. The general contractor, OHL Construction (“OHL”) bonded off the lien, and then … Continue Reading

Lien on Me: When Can a Contractor Re-Start the Clock on Its Lien Period?

Posted in Construction

Under Ontario’s Construction Lien Act, there are strict timelines to preserve lien rights. With some nuances, a supplier’s lien must be registered within 45 days from the last date on which services are provided, or materials supplied to an improvement.[1]  But what happens when a trade comes back to the site to effectively bang in a couple more nails? Does such work extend the last date of supply? Is the clock on its lien rights re-set?

The short answer is no. If the work is indeed trivial, the trade is out of luck. The expiry of a lien … Continue Reading

“Antrim Truck Centre Ltd. v. Ontario (Transportation)”: When the Value of a Truck Stop Becomes a Public Infrastructure Cost

Posted in Litigation, Municipal

 For 26 years, Antrim Truck Centre Ltd. (Antrim) operated a truck stop on Highway 17. Then in 2004, the Province constructed a new highway, and forever altered Highway 17. No longer could motorists access the truck stop – its business was lost and the market value of its land was permanently impacted. Antrim sought compensation from the Province based on the legal principle of “injurious affection.” And the Supreme Court granted it.[1] It upheld a decision of the Ontario Municipal Board, awarding Antrim $393,000.

The Supreme Court of Canada (Court) set out a legal framework for injurious affection and … Continue Reading