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Sender:
David Percy
Date:
Wed, 16 Apr 1997 11:19:39 +0200
Re:
subrogation - Reply

 

I have not yet had time to read the BC decision, as I am starting the task of climbing a mountain of final exams. However, it seems to me that the issue is clouded by the words of the standard Canadian performance bonds, which allows the surety to offset against its liability for up to the principal amount of the bond the balance of the contract price. Unencumbered by minor details such as the facts of the case, it seems to me that the assumption of the surety industry is that the surety gets everything which the properly completing contractor would have received from the owner. The subs are left to their rights under the Labour & Material payment bond (if any) and to their position under provincial lien legislation, which in itself affects the balance of the contract price for which the owner would be responsible to the original contractor and surety. The trust provisions under provincial legislation vary a great deal. In Alberta, they apply only in the rare circumstance of a payment by the owner of a sum after the issue of a special statutory certificate of substantial performance. I will get back to this issue properly after my spell in purgatory ends on or about MAY 18. Meanwhile , I thought others with greater leisure at this time of year might appreciate some leads.


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