Specifier 1110 - Vancouvervancouver.csc-dcc.ca/img/content/VanChapter/Specifier/Specifier... ·...

CSC Vancouver Chapter Board Members 2010/2011

Chapter Chair Melodie Schwartzman Tel: (778) 840-1012 Chapter Director Kelly Sawatzky Tel: (604) 676-8113 Vice Chair/Golf Blair Bennett Tel: (604) 522-3944 Program Officer George McCutcheon Tel: (604) 736-8959 Marketing Officer/Website Mario Maggio Tel (604) 857-7766 ext. 311 Treasurer Vince Smith Tel: (604) 868-8406 Secretary Moira Rowan Tel: (604) 298-3555 Specifations Officer Beverley Darling Tel: (778) 886-2541 Membership Officer Steve Amos Tel: (778) 558-4690 Education Officer Nathan Thompson(604) 607-8800 Newsletter Committee Lori Elling Tel: (778) 389-1510 Layout: Sheila Matthews Tel: (250) 593-2218 Have an idea for the Specifier? We would love to hear from you. An announcement, upcoming event, or technical article. Any submissions for the Specifier can be emailed for review to [email protected] and we will do our best to get it in print. Dead-lines for the articles are the last Friday of the month for the following month’s newsletter. Speak up and be heard! Lori Elling [email protected]

Nov 2010

VANCOUVER CHAPTER

BREAKFAST MEETING

THE EVOLUTION OF GLASS AND HIGH PERFORMANCE COATINGS 7 AM Thursday, 18 November 2010

Presented By: Bill Coady, Guardian Glass Breakfast: 7:00-7:45 am—Breakfast (buffet style) Business: 7:45-8:00 am— Chapter Business Program: 8:00-9:00 am—Guest Speaker Presentation Location: Sandman Inn, 180 West Georgia, Vancouver Cost: $32.00 for pre-registered CSC Members / Association Executive Dir. $48.00 for guests and CSC members who have not pre-registered

Note that our monthly meetings are approved for an educational unit credit by

AIBC and are conveniently scheduled at breakfast so as not to conflict with normal business hours.

(REGISTER ONLINE NOW AT WWW.CSC-VANCOUVER.CA)

Please join us for these informative and entertaining meetings Punch cards are no longer being sold

WE ARE NOW ON FACEBOOK AND TWITTER!

CSC Vancouver Chapter has a new Facebook page and Twitter account!

Now members can keep up to date with news and events by “liking” the CSC Vancouver Chapter page on Facebook, and following us on Twitter,

@CSCvancouver.

Nov 2010 The Vancouver Specifier

2 www.csc-vancouver.ca

In this Issue:

3-4 5 6 7 8 9-10 11 12-13 14

Breakfast Notice Bio

Education Report Memberships Education Achievements

Membership Report Tech Article

Conferences info/ Don Thomas Business cards Advertising Info

CSC Vancouver Chapter 2010/11 Program

The opinions and comments expressed by the authors do not necessarily reflect the official views of Construction Specifications Canada. Also, appearance of

advertisements and new product or service information does not constitute an endorsement of products or services featured.



Blair Bennett “How I got into the CSC Fold” I have been involved with CSC since 2004, officially, but was attending events when I was with a previous manufacturer in 2002. I remember Harry Elphick telling me that as a “young and upcoming guy in division seven, you should join CSC and get some training and achieve your CTR status. I am too old to learn but you should do it.” In hindsight, he must have benefited from a membership drive at the time? So I listened to him and went to few breakfast meetings and started to take the PCD course with Robert Park teaching. It was at these Mon-

day night PCD courses where I started to meet some of the great people that have been associated with our local chapter. I completed my PCD course and went on to earn my CTR designation. It was when I joined Soprema, in 2004, when I started getting pulled into the fold of the local chapter. I remember coming into the club-house from a rainy June CSC golf tournament in Pitt Meadows when Kim Tompkins came up and said “we need somebody to take over the golf tournament next year, its easy, no big commitments, you only have to come to a few board meetings.” So I said “sure”. This was where it all started for me. I have been involved with the CSC golf tournament since 2005, sat on the CTR Sub-committee as the representative from BC (again Kim Tompkins put me there), helped with the 2007 Conference organiza-tion committee, and most recently agreed to be the vice-chair for the Vancouver chapter. In addition to my roles in the local CSC chapter and my paying job of BC Regional Manager for Soprema Inc, I have a wife and two elementary school age children. We enjoy taking the kids to their various after school activities of soccer, basketball, piano, ballet, cubs and swimming lessons. We spend the summers using our boat and enjoying our family cabin up Indian Arm near North Vancouver. Bottom line is, be careful when you talk to Kim Tompkins, you might make a decision that affects you very positively for the coming years. But seriously, it has been a great experience and I encourage all of you to get involved at the local chapter level. It is good for your career and good for forging some per-sonal relationships that can last a lifetime. Blair Bennett, CTR, RRO, CSP PS – I know of a great opportunity for a person to take over a fairly successful golf tournament!

CONSTRUCTION SPECIFICATIONS—CANADA MANDATE

Construction Specifications Canada (CSC) is a national, multi-disciplinary, non-profit association dedicated to the improvement of communication, contract documentation and technical information in the Design and Construc-tion Industry.

EDUCATION REPORT:

The Principals of Documentation Course (PCD) is running from November 8th to December 6th. (See next page) Future courses are still being determined and any input regarding which options the member-ship would like to see offered in the Spring of 2011 would be well received.

Nathan Thompson Education Officer



MEMBERSHIP REPORT: Join the Vancouver Chapter of the CSC! November 1st, 2010 to February 28th, 2011 For every new member sponsored get entered into a prize draw to win; 1st Prize - Apple 64 GB iPad with WiFi+3G. Four runner up prizes of – Apple 32 GB iPod touch. Every new member will receive a $100 voucher that can be applied to the 2011 Montreal Confer-ence cost and copy of the new MasterFormat 2010 Update. Winners will be announced at the March 2011 Board of Directors Meeting. Please note: lapsed members wanting to qualify as new members must not have been a member of CSC within the past 5 years to qualify. New Member Please join me in welcoming Malcolm Cairns to the CSC Vancouver Chapter; Malcolm Cairns Parallel Group Operations Inc. We look forward to meeting you in person at future CSC Vancouver events! Stephen Amos Membership Officer 2010/2011





MATERIAL SUPPLIERS ARE CREDIT GAMBLERS – by Bill Preston. (Reprinted from The Toronto Specifier, “Legal Corner”, June 2010 Issue.)

Hey, granting credit in the construction market is a gamble. And, in my experience, often the biggest gamblers are the suppliers who depend upon the financial success of a project, but know very little about it. Surprisingly, there are also many suppliers who are satisfied if they can pretend that they are not a “lien claimant” so as to avoid being sub-ject to the 10% statutory holdback requirements of lien legislation. Rather, they simply brad a worthless customer’s credit application on their file and hope for the best. Well, can the lien legislation help? A recent decision of the On-tario Court of Appeal in Sunview Doors Ltd. v. Academy Doors & Windows Ltd. may give you some ideas because, in my opinion, the facts and reasoning in this case are as usual to Saskatchewan as to Ontario. FACTS

1. Sunview Doors was a manufacturer/supplier to contractors of custom-made (not stock items) patio doors. 2. Sunview’s customers would spec the dimensions, color, opening directions, glass, etc. of an order and Sun-

view would supply to spec. 3. Sunview, seldom knew the location of the project to which they were supplying because:

• The specs were a creation of a contractor and seldom identified the project • Customer looked after pick-ups and deliveries from Sunview’s Plant; • Customer always knew the project location, but Sunview didn’t care because it neither wanted to take

responsibility for the suitability of the spec; • Nor ever planned to lien a project for its supply price.

4. While, Academy Doors was a supplier/installer of windows, doors, curtain walls, etc. for retro- fitted/renovated residential projects.

5. By 2005, Academy had persuaded Sunview to grant it a $100,000.00 unsecured line of credit. 6. The corporate directors and signing officers of Academy Doors were 2 cousins who relied upon Ms. O’Brien,

a sister to one, to look after the books and prepare the cheques for signing. 7. But, Ms. O’Brien did not have the authority of Academy Doors to sign cheques. 8. By July/06 Academy owed Sunview $58,244.62 on eight orders which had been picked-up and installed. 9. And a further $28,785.36 on a ninth order which Sunview had completed, but Academy hadn’t picked up. 10. In July/06, Sunview became concerned about its receivable and phoned Ms. O’Brien who reported that Acad-

emy hadn’t been paid but that Sunview would be paid when Academy was paid. 11. Sunview also asked Ms. O’Brien for the location of the eight projects where its patio doors had been installed,

but she refused because she feared that Sunview might contact Academy’s customers. 12. At that time, what Academy had been doing was paying to Ms. O’Brien between $150,000.00 and

$195,000.00 over and above her usual salary, and she in turn in July/06 incorporated a new company, Mag-num Windows, with the corporate purpose of doing exactly the same type of business as Academy.

13. Finally, in August/06 Ms. O’Brien quit working for Academy and in October/06 Academy spirited its assets out of its rental space and bounced an NFS cheque on its landlord.

14. Then, in January/07 Ms. O’Brien’s new company opened for business using Academy’s equipment! 15. As well, during the trail:

• Academy admitted it owed Sunview $87,029.98 for the nine orders; and, • The 2 director cousins conceded that they had used the contract monies from the eight projects “for their

own use”; while, • Ms. O’Brien took the position that she had been only a minor employee of Academy and had no effective

control over how Academy spent its money or paid Sunview. 16. At the trial, Sunview relied upon the trust sections of the Ontario lien legislation to claim against the 2 cheque

signing cousins as well as Ms. O’Brien. 17. But the Trial Judge, relying upon a 2001 Ontario Court of Appeal decision (Saskatchewan has a like 1981

decision), rejected Sunview’s claim because Sunview did not know at the time of its supply the location of the intended projects nor the identity of the project owner. What to do? Sunview appealed this Trial Judgment to the Ontario Court of Appeal.

Cont’d



COURT OF APPEAL DECISION The Ontario Court of Appeal decided not to follow its 2001 decision. As a consequence, Sunview obtained the fol-lowing judgments:

• $87,029.98 against Academy for all nine orders, because Sunview had no market for the undelivered ninth order;

• $58,244.68 against the personal and Ms. O’Brien, representing the price of the 8 orders which were supplied and installed, and paid to Academy; and

• $25,000.00 severally and jointly against all of the Defendants, including Ms. O’Brien, for Court costs.

Here’s how the Court of Appeal rationalized these results: 18. The purpose of lien legislation is to protect those that supply materials to a project. 19. But, the legislation is not intended to apply to retailers who sell off-the- shelf stock without regard to the spe-

cific requirements of or knowledge about the project. 20. Here at the time of the order and supply, Sunview may not have known or cared to know which project the

delivery was intended for, but Sunview’s knowledge and intention are not required for it to be “sub-contractor” lien claimant.

21. In this case, Sunview is a “sub- contractor” because it’s supply was specifically spec’d for a particular project and it was usual and reasonable to expect that Academy’s business records would indicate where each deliv-ery went, while the lien legislation gives Sunview a right of access to Academy’s business records to later identify the project to which each of its products were delivered.

22. Actually, Sunview could have liened each of these projects, had it done so before the customers had duly paid Academy.

23. Nevertheless, the trust remedy is available against Academy for those contract monies which it received from its customers and used to pay for the cost of other jobs, Academy’s administration costs, and/or for the per-sonal benefits to Academy’s directors and employees.

24. Further, the lien legislation also permits Sunview to collect from Ms. O’Brien and the 2 cousins where they are a director or employee of Academy who had effective control of Academy’s books and payments, and they did not object to pay the contract monies to their own Academy’s admin costs, before first paying all those suppliers, labors and trades on the project who directly contracted to Academy.

25. For this case, the 2 cousins admitted all except the issue whether Sunview was a “subcontractor” beneficiary of the statutory trust.

26. While, Ms. O’Brien also took the position that she did not have “effective control” of Academy’s books and payments.

27. The Court found that her position was not reasonable given: • The 2 cousins said they relied upon her to keep the books and prepare the cheques for their signature, be-

lieving that she would not prepare the cheques without first assuring that everyone was paid. • Also, she clearly lied, when in June/06 she told Sunview that Academy had not been paid by its customers;

and • She obviously had the requisite control over Academy’s books to pay herself between $150,000.00 and

$195,000.00 over and above her usual salary. CONCLUSION

28. Clearly, Sunview could have avoided a peck of delay and legal costs if, at the time of its supply, it had in-sisted that Academy’s pick-up driver sign a delivery receipt containing the simple words prescribed by the lien legislation, which deem the supplier a “sub-contractor” lien claimant.

29. Also, those suppliers who think their intent can define whether or not they are a “sub-contractor” subject to a 10% statutory holdback on their claim for payment of their supplies are fools; this intent is irrelevant and their purpose will be legally unsuccessful if they have either fixed their price by doing a take-off from the project’s design, recommended a particular supply for a project, urged a designer or owner to use their products for a particular project, and/or fabricated supplies spec’d for a particular project which can later be identified.



Conferences

The 2011 conference will be held in beautiful Montreal and the theme is “Juggling Changes”. There is an amazing Fun Night planned and given the presentation we were given in May, I know this is going to be a ‘not-to-be-missed’ conference. The following year (2012), the conference will be held in Ottawa, then out west to Calgary for 2013. The conferences for 2014 and 2015 are in Ontario (exact location to be determined) and Winnipeg respec-tively. If you have any interest in hosting (or helping to host) a conference in B.C. in 2016 or 2017, please con-tact me. If there is enough interest, we will need to put a proposal in to the Association. There are a few other items that will be announced in a few weeks. Keep checking the Specifier for up-dates! I encourage you to contact me if you have any questions or feedback. I will take any matters I cannot an-swer to the Director’s meeting in March. Have a great month! Kelly Sawatzky

In Memory of Don Thomas The CSC Vancouver Chapter has made a $500.00 donation to the Transplant Research Foundation of BC in the memory of the late Don Thomas. The CSC has been notified that the funds will be directed towards peer‐reviewed research, which will improve the access to and the quality of transplants for BC transplant patients. For more information on the Transplant Research Foundation of BC and its work, visit their web‐site at www.transplant.bc.ca.



CSC Advertising – Newsletter and Website:

Every month, the Specifier features a classified section. Advertise your business with us! This will provide you with the opportunity to advertise within the industry in the newsletter and on the CSC Van‐couver website.

For the cost of:

$225 ‐ Members $250 ‐ Non Members

You will receive advertising space on the second page of the Specifier and on the CSC chapter website. The ad will be placed in 1 issue of the Specifier and reside on the website for 1 month. Ads must fit on one page only and are not limited to copy content or visual features. Other publications such as ours typically use this space for employment opportunities etc. and this is one type of advertising we are looking for. If you are not sure whether the Specifier would be an appropriate tool for you, please email me with your ques‐tions. So, if you would like to advertise, or have any questions, please let me know. All advertising content is subject to pre‐approval by the responsible CSC Committee.

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