Articles & Publications

Publication, Staff | January 10, 2024 | Kai Hsieh

Waivers in Contracts and their Risks and Consequences to Parties

It is a common understanding that parties to a contract are bound by the provisions of that contract. However, there may come a time when one or more parties wish to waive a provision in the contract, or when one party breaches a contract, but the other party is prepared to overlook the breach. These situations raise many important questions: if you expressly waive an obligation does this waiver last indefinitely? If you do not explicitly waive an obligation, but take no action in response to the breach, has that obligation been waived?

This article gives readers an overview of the law on waivers, the difficulties surrounding waiver, and the ways parties often try to protect themselves from the uncertainty of waivers.

As published in the NRCA’s Northern Construction Connection January 2024 Newsletter, and VICA’s e-New.

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Publication, Staff | July 13, 2023 | Sonia Sahota and Kai Hsieh

Trade Agreements – Rights and Requirements 101

Trade agreements apply to public organizations, such as local governments, Crown corporations, health authorities and school districts, and may impact the process by which they procure goods and services (including construction). It is important for public organizations, and vendors that may supply them with goods and services, to understand the rules, limitations and exceptions that may operate for different types of procurements.

As published in the NRCA’s Northern Construction Connection July 2023 Newsletter, and VICA’s e-New.

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Article, Staff | April 12, 2023 | David Giroday and Kai Hsieh

City of Revelstoke v. Gelowitz 2023 BCCA 139: A Cautionary Tale for Local Governments on the Duty to Warn Public Facility Users of Hazards

The British Columbia Court of Appeal has affirmed the lower court decision in which the City of Revelstoke (the “City”) was held liable for injuries sustained by the plaintiff after the plaintiff dove into a lake and into shallow water.

Although the plaintiff made his dive from private lands owned by a third party those lands were accessed by the plaintiff as part of a swim that began from the Williamson Lake Park and Campground, a pay-for-use park owned by the City. The plaintiff had been camping on the City-owned lands with friends and family and had entered the lake without seeing the “no diving” signs that had been posted elsewhere. The decision is notable because the City was held liable for not warning of the danger of diving from lands that were not owned by the City. This liability arose because the City invited members of the public into its lakefront park, had been made aware of the dangers posed to individuals diving into the lake area, and was aware that park users were routinely accessing other lands surrounding the lake where this danger was present.

The City was found to have failed to warn the plaintiff of the danger of diving into the lake by failing to have adequate warning signs placed in the vicinity of the lake warning of the dangers posed by diving into the water.

 

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Publication, Staff | February 8, 2023 | Kai Hsieh

Construction Litigation: How a Negligence Claim can Fail if Parties Allocate Risk by Contract

A summary of Centurion Apartment Properties Limited Partnership v Loco Investments Inc, 2022 BCSC 2273

In settling the terms of a contract, parties often address how liability will be handled in the event of a loss, whether through limitation of liability clauses, indemnity clauses, or otherwise. In some cases, parties may also wish to seek redress outside of the terms of the contract through claims of negligence. As discussed in this article, however, such a claim may not always be successful.

As published in the NRCA’s Northern Construction Connection February 2023 Newsletter, and VICA’s e-New.

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Article, Staff | November 24, 2022 | Kai Hsieh

A Tale of Two Housing Crises: How British Columbia and Ontario are Increasing Housing Supply through new Legislation

Housing affordability has been top of mind for many Canadians, and on November 21, 2022, BC’s Attorney General and Minister Responsible for Housing, the Honourable Murray Rankin, introduced Bill 43 to enact the Housing Supply Act, meant as “an important tool in reversing the housing crisis….” and Bill 44 to enact the Building and Strata Statutes Amendment Act, 2022, to “Expand housing options… in this tight housing market” (together, the “Housing Bills“). The Housing Bills come several months after then-incoming Premier David Eby laid out his plan for affordable housing (the “Housing Plan“), and almost one month after Ontario’s Minister of Municipal Affairs and Housing introduced Bill 23, enacting the More Homes Built Faster Act, 2022 (the “MHBF Act”) to increase housing supply in its Province.

This article provides an overview of the Housing Bills and compares them against the Housing Plan and Ontario’s MHBF Act.

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Publication, Staff | August 18, 2022 |

The Fine Line Between Bid Repair and Bid Clarification: Permissible Post-Closing Conduct for Bidders and Procuring Entities

In June, we published an article addressing non-compliance and substantial compliance of tender bids. In that article, we discussed the need for bids to be compliant to give rise to Contract A—the bid contract. The requisite compliance, while assessed objectively, can vary depending on the express terms and conditions contained in the tender documents.

This article will examine situations when seeking clarification from a bidder post-closing may be permitted and when such conduct may constitute bid repair.

As published in the NRCA’s Northern Construction Connection August 2022 Newsletter, and VICA’s e-New.

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