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March 2018
The Saskatoon
CSC Saskatoon Presents
See Page 2 for more Upcoming Events.
Upcoming Events
csc-dcc.ca | saskatoon.csc-dcc.ca The Saskatoon Specifier | March 2018 | Page 2
Featured Sponsor
Mar 27
Jim Pattison Children’s Hospital Presentation
Henry Downing Architects
Ramada Hotel – Lunch Presentation
April 11
CSC Saskatoon Membership Mixer
Black Fox Distillery
Apr 24
Jim Pattison Children’s Hospital Tour
Supper & AGM @ TBA
May 29
Bonding Presentation – Aon Risk Solution
John Spooner – Sr Vice President
June 27
Golf Tournament
Moon Lake Golf and
Country Club
If you have suggestion for future CSC events send your ideas to
Tyler Grabowski at [email protected] or (306) 514-2579.
Follow us on Twitter
@CSCSaskatoon
csc-dcc.ca | saskatoon.csc-dcc.ca The Saskatoon Specifier | March 2018 | Page 3
Annual CSC Saskatoon Social Mixer
Home of the “World’s Best Cask Gin 2017”
Construction Specifications Canada Membership Mixer will be an evening to network with many members of our
organization and tour this innovative facility.
Wednesday, April 11th, 2018
Black Fox Distillery245 Valley Road - Saskatoon, SK
5:30pm to 7:30pmYou will be greeted with a welcome cocktail upon your arrival.
Charcuterie platter and appetizers will be provided. Then we will have a presentation by the owners of Black Fox
with a distillery tour and sample tasting.
Ensure you RSVP early as space is limited within the location.RSVP to: [email protected]
csc-dcc.ca | saskatoon.csc-dcc.ca The Saskatoon Specifier | March 2018 | Page 4
Annual Golf Tournament
csc-dcc.ca | saskatoon.csc-dcc.ca The Saskatoon Specifier | March 2018 | Page 5
CA Course this Fall…
CSC SASKATOON CHAPTER IS PLEASED TO OFFER:
THE PRINCIPLES OF CONSTRUCTION
DOCUMENTATION COURSE
The PCD course is an introductory course that will enable students to have a better
understanding of construction documentation, bidding procedures and contracts. It is also
precursor to all the other CSC education courses.
The PCD course is a prerequisite for the professional designations from CSC.
The course is designed for individuals involved in the construction industry who are required to
produce, read, supply products for, or rely on the project manual/specification. In other words, it
is designed for anyone in construction, whether they work as a designer, consultant, contractor
or supplier.
Course Begins: September 2018, Date To be Determined
Pre-Registration Available to Reserve a Seat
For more information Contact: Jenny Dergousoff, A. Sc. T.
(306) 667-2409 or [email protected]
T-Shirt not included with course fees.
Unless you pay us.
Then we will see what we can come up with. Maybe.
csc-dcc.ca | saskatoon.csc-dcc.ca The Saskatoon Specifier | March 2018 | Page 6
Legal Article
Last fall, I reported on an interesting decision from the Alberta Court of Appeal in Valard Construction Ltd. v. Bird Construction Company (2016 ABCA 249) (see September, 2017 edition of the Specifier). As a quick recap, the case involved whether Bird Construction (“Bird”), a general contractor completing an oil sands project for Suncor Energy in Fort McMurray, Alberta, had a duty to disclose the existence of a Labour and Material Payment Bond (“L&M Bond”) to Valard Construction Ltd. (“Valard”), a sub-subcontractor on the project. Bird had required its subcontractor, Langford Electric Ltd. (“Langford”) to obtain an L&M Bond in favour of Langford’s subtrades and suppliers. Langford became insolvent, leaving its subtrade, Valard, unpaid. Valard did not become aware of the L&M Bond until after the timelines for claiming upon it had expired. As such, Valard sued Bird for breach of trust, claiming that Bird had a duty to inform beneficiaries of the existence of the bond. Following an in-depth analysis of Canadian trust law, the Court of Appeal ultimately concluded that Bird had no legal duty to inform potential claimants of the existence of the bond unless and until a clear and unequivocal request about the bond was made by a claimant. However, I cautioned readers that the case was making its way to the Supreme Court of Canada for the final word. In February, 2018, the Supreme Court of Canada released its judgment on the case (Valard Construction Ltd. v. Bird Construction Company, 2018 SCC 8). The result will inevitably require Owners, Consultants and General Contractors across the country to re-evaluate their approach to L&M Bonds on construction projects. The majority decision of the SCC was given by Justice Brown, who concluded that Bird, as trustee under the bond, had a duty to inform potential beneficiaries of the existence of the bond, and that Bird had not discharged this duty owed to Valard. In support of this conclusion, the SCC reasoned that:
• Under the terms of the L&M Bond (a standard CCDC 222-2002), Bird (as Obligee) was a trustee, which created a fiduciary relationship between it and the beneficiaries under the bond (which included Valard).
This fiduciary relationship imposed three duties upon Bird, the most relevant to the case being that Bird must “act honestly and with that level of skill and prudence which would be expected of the reasonable person of business administering his or her own affairs.”
• Valard, as beneficiary, had a corresponding right to “hold the trustee to account for its administration of the trust property and to enforce the terms of the trust.”
• In some cases, the beneficiary can only enforce the terms of the trust if they first know of its existence. Justice Brown reasoned that:
In general, wherever "it could be said to be to the unreasonable disadvantage of the beneficiary not to be informed" of the trust's existence, the trustee's fiduciary duty includes an obligation to disclose the existence of the trust. Whether a particular disadvantage is unreasonable must be considered in light of the nature and terms of the trust and the social or business environment in which it operates, and in light of the beneficiary's entitlement thereunder.
• After determining that Bird did have a duty to disclose the existence of the bond, Justice Brown assessed whether Bird had discharged that duty:
Like all duties imposed upon trustees, the standard to be met in respect of this particular duty is not perfection, but rather that of honesty, and reasonable skill and prudence. And the specific demands of that standard, so far as they arise from the duty to disclose the existence of a trust, are informed by the facts and circumstances of which the trustee ought reasonably to have known at the material time. In considering what was required in a given case, therefore, a reviewing court should be careful not to ask, in hindsight, what could ideally have been done to inform potential beneficiaries of the trust. Rather, the proper inquiry is into what steps, in the particular circumstances of the case — including the trust terms, the identity of the trustee and of the beneficiaries, the size of the class of potential beneficiaries and pertinent industrial practices — an honest and reasonably skillful and prudent trustee would have taken in order to notify potential beneficiaries of the existence of the trust. But, where a trustee can reasonably assume that the beneficiaries knew of the trust's existence, or where practical exigencies would make notification entirely impractical, few, if any, steps may be required by a trustee. [underline added]
.
Page 1 of 2
Labour and Material Payment Bonds – Better Safe Than Sorry
By Misty Alexandre – Robertson Stromberg LLP
csc-dcc.ca | saskatoon.csc-dcc.ca The Saskatoon Specifier | March 2018 | Page 7
Legal Article Page 2 of 2
• On the facts of this case, the Court adopted the conclusion of Justice Wakeling (the dissenting Justice from the Court of Appeal) that Bird could have discharged its duty to inform by simply posting the bond at the on-site trailer where notices were normally posted during the project. But, the Court was careful to point out that the exact requirements for a trustee will be fact specific:
This does not mean, however, that taking such steps will always be necessary in order to resist every claim for breach of trust made by a disappointed beneficiary of a labour and material payment bond. It is also possible that some other method of giving notice — had the evidence disclosed it — might have sufficed. To reiterate: the question is not what Bird could have done in this case, but what Bird should reasonably have done in the circumstances of this case to notify beneficiaries such as Valard of the existence of the bond. Here, Bird did nothing. It filed the bond offsite, did not post it, and told nobody about it. In some circumstances (where, for example, the industrial practice is such that the use of labour and material payment bonds to offset the risks arising from unpaid subcontractors are common), it may well be that very little, or even nothing, will be required on the part of a trustee to notify potential beneficiaries of the trust's existence. In the circumstances of this appeal, however, where the evidence was that labour and material payment bonds were uncommon, something more than nothing was required from Bird to discharge its duty. Bird therefore committed a breach of trust.
• Since Bird breached its duty to Valard, the Court held that Bird was required to compensate Valard for the sum they could have obtained under the bond had they known of its existence (which amount was directed back to the trial judge for assessment).
So, it appears the devil is always in the details. The SCC’s decision did not create any ‘hard and fast’ rule for trustees under L&M Bonds to follow. Rather, the measures to be taken by a trustee will be heavily dependent on the facts at hand. In this case, the fact that L&M Bonds were uncommon on private oil-sands construction projects was crucial to the SCC’s decision. Similarly, the evidence that notices were commonly posted at the on-site trailer was key in
concluding that posting the bond there would have been sufficient to bring notice to potential beneficiaries. If you find yourself in a state of confusion at this point, I expect you’re not alone. While it would be ideal to simply have a checklist of absolute ways to discharge your potential duty as a trustee under an L&M Bond, unfortunately it will not be that easy. As the SCC suggested, there may be situations where little, or no, action is required from a trustee to inform potential beneficiaries. However, I suggest you take the ‘better safe than sorry approach’. If you (or the Owner) are trustees (ie Obligees) under an L&M Bond, I recommend following the lead of Justice Wakeling in the Court of Appeal decision:
• On every project, put yourself in the shoes of the potential beneficiaries. Consider what steps could be taken (within reason) to ensure subs and suppliers will be notified of the existence of the L&M Bond.
• Establish a common point for notices to be displayed on the project, and immediately post any issued L&M Bonds at that location in a visible spot. Ensure this is a place that would be noticed by subs and suppliers visiting the site.
• Depending on the project size, you may also consider establishing a link online where all notices for specific projects can be accessed electronically.
• Consider using the contract terms to bring notice of the bond to subs and suppliers.
o For example, Justice Wakeling suggested a contract provision requiring the general contractor (or, in other cases, the subcontractor) to disclose the existence of the L&M Bond to all subcontractors and suppliers and requiring them to produce written confirmation from all subs or suppliers that they’ve been made aware of the bond.
o Alternatively, consider requiring the general contractor (or subcontractor) to produce a list of the names and mailing addresses of all subs and suppliers, and then taking steps to mail a copy of the L&M Bond to them directly.
While it’s impossible to predict what will be deemed ‘reasonable’ in each situation, it’s safe to assume that simply tucking an L&M Bond into a drawer after receipt is no longer prudent.
csc-dcc.ca | saskatoon.csc-dcc.ca The Saskatoon Specifier | March 2018 | Page 8
IDAS Event
CSC Saskatoon is pleased to bring this special event to your attention.Members of the public are welcome to attend.
csc-dcc.ca | saskatoon.csc-dcc.ca The Saskatoon Specifier | March 2018 | Page 9
Sponsors
Please consider supporting these local businesses…
csc-dcc.ca | saskatoon.csc-dcc.ca The Saskatoon Specifier | March 2018 | Page 10
Membership in CSC
About Us
In the construction industry’s fast-paced environment, the need for and value of Construction Specifications
Canada is greater than ever. CSC brings together individuals from all segments of the construction
industry. All who have a vested interest in Canada’s largest industry are invited to join CSC. When you join
CSC you become a part of the only association that brings together professionals from all aspects of the
construction industry.
For More Information on Membership please see the
“Contact Us For More Information” Section on the last page.
CSC offers members of the Design Team the opportunity to meet with other members and
exchange information. It also affords you the chance to help improve technology and its
management, and the means to improve ways in which your ideals are translated into clear,
concise and complete documentation.
If you are a member of the Building Team, Construction Specifications Canada offers you the
opportunity to become involved in formulating specifications. Your valuable input into the
programs can help generate time and cost savings as well as improve performance of the
building process.
The multi-disciplinary composition of CSC allows members of the Supply Team to meet with
other members of the construction team. CSC programs in data filing and information retrieval
are geared to present convenient and concise information on your products for proper
evaluation and specification.
If you are a Student of architecture, engineering or construction technology, CSC will provide
you with greater exposure to and a better understanding of the Construction Industry, giving
you an excellent opportunity if you plan a career in the construction field.
Our Mission
Construction Specifications Canada (CSC) is a national multi-disciplinary, non-profit association
with chapters across Canada. CSC is committed to ongoing development and delivery of quality
education programs, publications and services for the betterment of the construction community.
To this end, CSC pursues the study of systems and procedures which will improve the
coordination and dissemination of documentation relevant to the construction process. CSC Seeks
to enhance the quality of the design and management aspects of construction activity through
programs of publication, education, professional development, and certification, believing that in so
doing it can best contribute to the efficiency and effectiveness of the industry as a whole.
Our Vision
That Construction Specifications Canada is the construction community’s first choice for quality
documentation, education and networking.
Our Values and Core Beliefs
Quality, Professionalism, Teamwork, Integrity, Openness & Innovation
csc-dcc.ca | saskatoon.csc-dcc.ca The Saskatoon Specifier | March 2018 | Page 11
2017 / 2018 Executive Committee
Chapter Director
Brennen Mills
(306) 270-5184
Education Officer
Jenny Dergousoff
(306) 667-2409
Interiors Officer
Carolyn Saganaski
(639) 470-3457
Membership Officer
Carolyn Saganaski
(639) 470-3457
General Contractor Officer
Brennen Mills
(306) 270-5184
Member at Large
Rick Kalenchuk, CCCA
(306) 966-2407
Chapter Vice-Chair
Brad Smith
(306) 652-5044
Facility Manager Officer
Daryl Cherry
(306) 966-4643
Legal Officer
Misty Alexandre
(306) 933-1352
Co-programming Officer
Tyler Grabowski
(306) 514-2579
Specifications Officer
Vacant
Architectural Officer
Vacant
Member at Large
Cory Rodych
(306) 242-3315
Chapter Chair
Amber Moar
(306) 683-2912
Engineering Officer
Trevor Knoll
(306) 477-0655
Secretary/Treasurer
Kelly Boldt, CSP
(306) 343-7280
Programming Officer
Amber Moar
(306) 683-2912
Newsletter Editor
Wade Klassen
(306) 664-2100
Member at Large
Bob Spenst, FCSC, CTR, CCCA
(306) 382-6312
Contact Us For More Information
Contact any member of the executive listed above.
Attend one of our regular lunch meetings.
Visit the association website at www.csc-dcc.ca.
Visit our local chapter website at saskatoon.csc-dcc.ca.
Our mailing address
Construction Specifications Canada
Saskatoon Chapter
PO Box 7273
Saskatoon, Saskatchewan, S7K 4J2