LIENS - Holdback - When applicable - When payable

Law360 Canada (July 15, 2022, 6:07 AM EDT) -- Appeal by Kelly Panteluk Construction Ltd. (“KPCL”) from decision of Court of Queen’s Bench Chambers judge, determining that Canadian Pacific Railway Company (“CP”) was entitled to retain construction holdback owed to KPCL as set-off against CP’s claim for breach of contract, negligence and damages in an action against KPCL and other defendants. KPCL and CP entered into a supply of services contract (“Contract”) for CP’s railway project. The project suffered the collapse of a significant segment of an earthwork embankment. CP was required to redesign the affected segment of the project and reconstruct the entirety of the damaged earthworks. KPCL provided work and services for that remediation. Pursuant to the contract, KPCL agreed to perform substantially all of the excavation, grading, earthwork and embankment work to complete the project. CP paid KPCL for all of the remediation work it had performed. The full contract price due and owing to KPCL was paid by CP, except for the ten per cent holdback. The issues for determination were whether CP was entitled to retain the holdback pursuant to the Contract by virtue of a claim of set-off in contract or otherwise and whether CP was entitled to retain the holdback by virtue of s. 13 of The Builder’s Lien Act (“BLA”)....
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