Uncertain Surety: Expiration of a Limitation Against a Principal is not a Defence to a Bond Claim

Uncertain Surety: Expiration of a Limitation Against a Principal is not a Defence to a Bond Claim

Sometimes
failing to arbitrate a dispute with a binding arbitration provision can be
fatal to a claim under a construction contract, particularly if the limitation
period to commence the arbitration has expired. 
But, in the case of a project with a performance bond, things can
sometimes become more complex.

Performance
bonds are a common tool on major construction projects. They are three-party
contracts:

  1. the obligee
    (the party to whom the obligation under the bond is owed; typically an owner,
    although can be a general contractor on large projects in which multiple levels
    of bonding are in place);
  2. the
    principal (the party performing the work under the bonded contract; typically a
    general contractor, although can be a subcontractor on large projects in which multiple
    levels of bonding are in place); and
  3. the surety
    (an insurance company).

If
the bonded contract proceeds without issue between the obligee and the
principal, then the surety plays no role in the project. However, if issues
arise between the obligee and the principal and the principal is declared to be
in default of the bonded contract, then the surety is required to step in and
investigate.

The
surety can either deny or allow the bond claim. If the claim is allowed, then
the surety essentially steps into the shoes of the principal, and has the same
defences available to it as against the obligee as did the principal under the
bonded contract prior to its default.

A Surety Cannot Rely on the Expiration of a
Claim against the Principal to Deny a Bond Claim

However, the Alberta Court of
Appeal in HOOPP Realty Inc v Guarantee Company of
North America
, 2019 ABCA 443

held that the expiry of an obligee’s limitation period to sue the principal
does not provide the same limitations defence to a surety in the face of a bond
claim lawsuit.

In that case, Clark Builders (“Clark”)
was the principal/general contractor, HOOPP Realty (“HOOPP”) was the
obligee/owner, and The Guarantee Company (“GCNA”) was the surety. Clark was
hired to construct a warehouse. HOOPP was unhappy with the warehouse floor.
Clark replaced the floor at its own cost, but argued it was not required to do
so under the bonded contract. The parties agreed the performance bond would
extend to the floor replacement if Clark was in default of the bonded contract.

In litigation between HOOPP and
Clark, the Court of Appeal held that the dispute was subject to a mandatory
arbitration clause, and HOOPP could not maintain a Court action. Subsequently,
the Court held that HOOPP was limitation-barred from commencing an arbitration
against Clark, and as such, HOOPP could not maintain any claim, in Court or
arbitration, against Clark.

HOOPP had commenced a separate,
parallel action against GCNA under the bond, which it continued to pursue
notwithstanding the dismissal of its claim against Clark. The issue then was
whether GCNA was also immune from liability to HOOPP, given that HOOPP’s claim
against Clark was limitation-barred.

The matter was heard via
summary trial. The trial judge concluded that GCNA was not relieved of
liability, as the expiry of a limitation period does not necessarily extinguish
the underlying debt, but only bars the remedy against the defendant. In
addition, the trial judge held that HOOPP had distinct claims against Clark and
GCNA, even if those claims may overlap.

The Court of appeal upheld this
decision. It noted that the general statement that a surety is entitled to any
defence available to the principal is accurate when related to the principal’s
liability under the bonded contract. However, when the issue is whether the
surety is directly liable to the obligee, that is a separate issue.

The Court confirmed that the
surety’s liability under the bond required that the principal had defaulted
under the bonded contract. But in the facts at bar, where there was an alleged
default by the principal, the obligee had a potential independent claim against
both the principal and the surety. This was supported by the bond wording in
this case, which provided that the surety and principal were jointly and
severally liable under the bond.

In addition, the Court noted
that an obligee is not required to exhaust all remedies against the principal
in order to advance a claim against a surety. While HOOPP in this case had
made an attempt to sue Clark, the Court noted that the outcome of the appeal
would have been the same even if no such attempt had been made.

Finally, the Court rejected
GCNA’s argument that by permitting HOOPP’s claim against GCNA to proceed, it
was allowing HOOPP to indirectly pursue Clark. GCNA argued that if HOOPP made a
successful claim against GCNA, GCNA would then have an indemnity claim against
Clark; i.e. in the end, Clark would still be liable for HOOPP’s claim despite
the expiration of HOOPP’s limitation period to sue Clark directly.  

The Court held that Clark, as
principal, did not have the protection of a limitations defence until the
limitation had expired against both it as principal and GCNA as surety.
Similarly, GCNA, as surety, did not have the protection of a limitations
defence until the limitation had expired against both it as surety and
Clark as principal. In other words, if GCNA was held liable to HOOPP, GCNA
could then pursue an indemnity claim against Clark.

While many of the Court’s
comments were general principles applying to all performance bonds, in the end
it was clear that the result on this appeal depended on the wording of the GCNA
bond. In particular, the Court noted there was nothing in this bond requiring
HOOPP to exhaust its remedies against Clark in order to maintain a bond claim
against GCNA.

The Supreme Court of Canada has
now refused leave to appeal for this matter, so it remains the law applicable
in Alberta.  The case adds another level
of complexity when trying to assess limitation periods in the context of
projects with mandatory arbitration provisions coupled with separate
performance bonds.

Anthony Burden

Anthony Burden

Anthony is a litigation Associate at Field Law, practicing in the areas of construction, general litigation and insurance. He has experience defending and prosecuting builders' lien claims, deficiency claims, contract and payment disputes and other general litigation disputes.

Ryan Krushelnitzky

Ryan Krushelnitzky

Ryan Krushelnitzky is a litigator in the construction, products liability and insurance areas. With a Ph.D. in civil engineering, Ryan’s engineering background assists him in dealing with the complex technical and practical issues faced by his construction, product manufacturer, and insurer clients. Ryan has acted for both construction contractors and owners in a wide range of areas, including: contractual disputes over progress and payment, delays, lost productivity, builders’ liens, construction deficiencies, tendering, and insurance/bonding. Ryan also assists his clients with contract review and general advice on construction related matters, with experience in industrial and commercial construction related projects.

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