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Category Archives: Construction and Real Estate

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What tangled webs we weave: The BCCA provides guidance on the tort of deceit and exclusion of liability clauses

Posted in Construction and Real Estate, Contracts, Torts

The British Columbia Court of Appeal’s decision in Roy v Kretschmer, 2014 BCCA 429 provides guidance on the element of reliance in the tort of deceit. It also holds that a contractual clause limiting liability is unenforceable even where the breaching party did not commit a criminal act or egregious fraud.

This decision is of interest to Canadian businesses because it suggests that where a contract has been breached, the breaching party can be sued in tort for hiding the circumstances of the breach if the non-breaching party relies on the breaching party’s fraudulent silence or misrepresentations. Further, in … Continue Reading

NSCA Considers First-Ever Ministerial Order Vesting a Mining Company with Title to Private Land

Posted in Administrative, Case Comments, Construction and Real Estate, Municipal

The Nova Scotia Court of Appeal recently addressed what the government must do to ensure a fair process takes place before making an order transferring private land to a mining company. In Higgins v Nova Scotia (Attorney General), 2013 NSCA 106, the Court considered the first vesting order made by the Minister of Natural Resources (the Minister) pursuant to the Mineral Resources Act, SNS 1990, c 18 (MRA) in Nova Scotia.

The Court found that the Minister must only provide an affected owner with the chance to make submissions prior to divesting him of title

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SCC Declares “When in Doubt, Report” Under the Environmental Protection Act

Posted in Case Comments, Construction and Real Estate, Energy, Manufacturing, Transportation

In Castonguay Blasting, the Supreme Court of Canada has unanimously upheld a broad interpretation of environmental reporting obligations under Ontario’s Environmental Protection Act. The judgment, delivered by Abella J., suggests that corporations may have environmental reporting obligations even in circumstances where they would appear not to have impacted “the environment” as that term is usually understood. The Court’s conclusion was set out with undeniable clarity in the second paragraph of the judgment as follows:

The interpretive exercise engaged in this appeal is to determine when the reporting requirement is triggered. In my view, there is clarity both of

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The Constructive Trust: A Just Remedy for Unjust Enrichment?

Posted in Case Comments, Construction and Real Estate

Should the reasonable expectations of litigants determine the availability of a proprietary remedy where one party has been unjustly enriched by the other? If a proprietary remedy is available in principle, is it just to impose a constructive trust when the plaintiff never expected to earn a proprietary interest?

A recent case from British Columbia, Haigh v. Kent, 2013 BCCA 380, addresses these questions (and more). Ultimately, the BC Court of Appeal upheld a trial judgment awarding a 25% interest in a campground and beach resort by way of constructive trust to a plaintiff who never expected to … Continue Reading

Buyer & Seller Beware: Zoning Irregularities in Real Estate Transactions Across the Country

Posted in Case Comments, Construction and Real Estate, Contracts

In decisions recently released from the Ontario Court of Appeal and the British Columbia Court of Appeal, the courts identify which party bears the burden when zoning irregularities materialize following the close of a real estate transaction.

In Lee v. 1435375 Ontario Ltd., the purchaser of a dry cleaning business was prohibited from relying upon the doctrine of equitable mistake where the rezoning of the leased premises had taken place, unbeknownst to the vendor, and the purchaser failed to investigate the status of zoning prior to closing. In contrast, 0759594 B.C. Ltd. v. 568295 British Columbia Ltd., the

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The Rascal Returns: The Supreme Court Reaffirms Doctrine of Constructive Trust in Nishi v. Rascal Trucking Ltd.

Posted in Case Comments, Class Actions, Construction and Real Estate, Contracts, Corporate Law, Manufacturing, Municipal

The Supreme Court has issued its decision in the case of Nishi v. Rascal Trucking Ltd., 2013 SCC 33, clarifying the scope of the resulting trust doctrine, in the commercial context. The Court reaffirmed its own precedent and refused to abolish well-established doctrine in the absence of a “compelling” reason for doing so, strong dissents in prior decisions or other inconsistent appellate jurisprudence.

Background

We have previously discussed the decision here.

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What’s the Value of a Truck Stop Without Any Trucks? Supreme Court Addresses Nuisance Claims in Public Projects

Posted in Case Comments, Construction and Real Estate, Torts, Transportation

In a new decision, the Supreme Court of Canada has provided guidance on when compensation might be due in cases of nuisance caused by public infrastructure projects.  The Antrim decision is relevant not only for those involved in the management of public projects, but it also shapes the more general law of nuisance, especially in relation to particularly disruptive construction projects.

Background

For 26 years, Antrim Truck Centre Ltd. operated a truck stop on Highway 17 in Eastern Ontario. Then in 2004, the Province constructed a new highway, and forever altered Highway 17. No longer could motorists access the truck … Continue Reading

Toward an Even Playing Field: The Supreme Court of Canada to Rule on Disclosure of Amounts in Pierringer Settlements Prior to Trial

Posted in Case Comments, Construction and Real Estate, Procedure

The Supreme Court has granted leave to appeal in a case that may elucidate the scope of discovery under Nova Scotia’s “semblance of relevance” test, in addition to the scope of settlement privilege and the entitlement of non-settling parties to know the settlement amounts under a Pierringer agreement in advance of the trial.

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Hot Off the Press – World Class Actions: A Guide to Group and Representative Actions Around the Globe

Posted in Aboriginal, Class Actions, Communications, Construction and Real Estate, Energy, Financial Services, Franchise and Distribution, Health, Insurance, Media, Municipal, Procedure, Professions, Securities, Transportation

In the newly published World Class Actions: A Guide to Group and Representative Actions Around the Globe, McCarthy Tétrault litigators David Hamer and Shane D’Souza co-authored the “Multijurisdictional and Transnational Class Litigation: Lawsuits Heard ‘Round the World” chapter. The chapter offers guidance to international lawyers who represent clients involved in cross-border, multinational and international class actions.

World Class Actions is a practical guide for lawyers, clients, legal support professionals, academics, policymakers and judges on the procedures available for class, group and representative actions internationally. Each chapter is written by a local attorney familiar with the laws, best practices, legal … Continue Reading

Can the Queen Be Taken at Her Word? Federal Court of Appeal Answers in Canada v. South Yukon Forest Corporation

Posted in Administrative, Case Comments, Construction and Real Estate, Contracts, Energy, Torts

The Federal Court of Appeal has clarified when the federal Crown will be held responsible for representations made by its officers. In issuing its decision, the Court opted for a narrow interpretation of the Crown’s liability and reiterated that parties that rely on the Crown’s representations have the responsibility to conduct their own due diligence.

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The Backside of a Truckstop: SCC to Rule on Balancing Competing Interests in Nuisance Cases

Posted in Case Previews, Construction and Real Estate, Torts, Transportation

The Supreme Court of Canada has granted leave to appeal in Antrim Truck Centre Ltd. v. Her Majesty the Queen in Right of the Province of Ontario, a case that is expected to provide clarity about the law of nuisance, particularly in cases where the social utility of the defendant’s activity is arguably very high. The case, alongside Smith v. Inco, is one of two in which the Ontario Court of Appeal has recently dealt comprehensively with the law of nuisance. In Antrim Truck, the Ontario Court of Appeal emphasized the importance of assessing whether a substantial

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OCA to Consider Jurisdiction of Superior Court Over Construction-Related Claim Against Municipality

Posted in Case Previews, Class Actions, Construction and Real Estate, Torts

Summary

The OCA will soon decide whether the Ontario Superior Court, as opposed to the Ontario Municipal Board, has jurisdiction over a claim by a class of failed businesses against a municipality for damages flowing from a local construction project.

Decision

The case involved a construction project by the City of Toronto and the Toronto Transit Commission to replace a streetcar line in the city. The project included enhanced streetscape, the upgrading of water and natural gas mains, and the burial of hydro lines. There was public resistance to the project and a process of public consultation.… Continue Reading

Will Your Companies’ Creditors Arrangement Act Superpriority Still Be that Super once the Scheme of Collocation is Drawn Up?

Posted in Bankruptcy and Debt, Case Comments, Construction and Real Estate, Financial Services

Rachel LaferrièreIn the context of an arrangement plan pursuant to the Companies’ Creditors Arrangement Act, a financial institution was granted a superpriority on all moveable and immoveable debtors’ assets following an additional $2,150,000 loan to the debtor, in order to allow it to complete some construction projects it had already started and for which it already owed $720,000 to construction subcontractors and providers.

The same financial institution was already a creditor for more than $4,000,000 guaranteed by hypothecs on various immoveable properties belonging to the debtor.… Continue Reading