In my article April 2011, titled Who Knew That Mary Carter Was Involved In Construction Law?, I reported about the decision in Aecon Buildings v. Stephenson Engineering Limited. In that decision, the Ontario Court of Appeal stayed an owner's claim because of the non-disclosure of a Mary Carter agreement.
The Supreme Court of Canada has recently dismissed an application for leave to appeal from that decision. Justice Binnie wrote the decision denying leave and he answers the "importance" question. Accordingly, the ruling by the Court of Appeal will stand as good law across Canada on this issue.
As a result, the comments in my article of April 3, 2011 are now under-lined:
"This decision is a reminder of the drastic remedies available to the Courts if litigation is conducted unfairly" and the parties must be scrupulous to ensure that Mary Carter and other similar agreements affecting the conduct of litigation are immediately disclosed.
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