Kennaley Construction Law

Our Guides to The Construction Act

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Changes to the Construction Lien Act came into force on July 1, 2018 to change the Act's name, amend existing lien and holdback procedures, extend lien time-frames, create lien rights and obligations in relation to leasehold interests, expand the scope of information that can be requested of other parties, change "written notice of lien" requirements, introduce new notice provisions and create new bonding requirements.  Other then in limited circumstances, these changes apply to all improvements made under contracts first procured or entered into after that date.

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On October 1, 2019, even more significant prompt payment requirements and adjudication procedures came into force.  These will substantially change how and when construction payments are to be made and how constructions disputes will be resolved in Ontario.  Everyone in the industry needs to understand and prepare for the changes.

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Understanding how various documents are to be given received under the Act is also important.  So, too, is an understanding of what parties can do in their contracts and subcontracts to better manage the risks and processes associated with prompt payment and adjudication.

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Our Guides to Construction Act Changes

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We have distilled important information about the new provisions into brief and concise topic specific guides.  Available for download and printing, we hope these guides will assist readers to understand, preserve and meet their rights and obligations in a timely, efficient fashion.  Click on the links below to view, print or download the individual guides, and associated, editable, Construction Act forms.

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The Construction Act contains new provisions that are subject to change and have not been interpreted by our individual Adjudicators or our Courts.  Our guides are intended to be helpful but they are not all encompassing.  The status of the law can change quickly and determining one's rights and obligations under construction legislation can be very complicated .  Experienced construction law counsel should be consulted in any particular circumstance.   

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Our Guides, Summaries and "Cheat Sheets"

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A combined, bookmarked and indexed .pdf copy of all our guides, summaries and issue specific user 'cheat sheets' is available for download here. 

 

Individual Guides and "cheat sheets" are set out below. 

Word .doc versions of Notices which you may need to give under the Act are also available through the links set out below.

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The Guides section below is best viewed from a desktop!

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The July 1, 2018 Changes 

        

       Re: lien time frames:

     - click here for our important lien time frames guide

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      - click ​to download:

                   - the new form of Notice of Termination of Contract

Re: the new holdback provisions:

   

      -click here for a new holdback provisions guide

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         - click ​to download:

                   - the form of optional holdback retention bond

                   - the form of optional holdback letter of credit

                   - the form of a notice of non-payment of holdback

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Re: the new bonding requirements:

     

- click here for a new bonding requirements guide.

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     - click ​to download:                   

                 - the form of performance bond for a public contract

                 - the form of labour & material bond for a public contract 

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Re: information available on request or to be published:

      

- click here for our guide to these new requirements and obligations

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Re new 'written notice of lien' requirements:

     

- previously, written notices of lien could be delivered in a number of different ways and forms.  Under the new provisions, a written notice of lien must be given in a prescribed form and served in the manner in which a court document would be formally served under the Rules of Court.

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     - click ​to download:                   

                 - the form of written notice of lien

                 - the form of withdrawl of written notice of lien 

 

Re new lien rights against a landlord's leasehold interest:

     

- the new changes have created a new set of rights and obligations vis-a-vis landlords where an improvement is undertaken at first instance by the mere tenant of a premises.

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     - click here for out guide to the new provisions relating to landlords

 

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Our Guides to the Prompt Payment Provisions

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The prompt payment provisions require funds to be paid on strict and short timelines, unless objections are raised formally by the payer, who must give a 'Notice of Non-Payment' in that regard.  The payment timelines will be triggered by the Owner's receipt of a "Proper Invoice". 

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Re: the Proper Invoice:

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      -click here for our guide to the use of the proper invoice

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Re: the Prompt Payment Requirements:

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    -click here for our prompt payment guide

    -click here for our prompt payment cheat sheet for Owners     

    -click here for our prompt payment cheat sheet for Contractors

    -click here for our prompt payment cheat sheet for Subcontractors

   

      - click ​to download:

               - owner's notice of non-payment to a contractor

               - contractor's notice of non-payment where owner doesn't pay

               - contractor's notice of non-payment if it raises a dispute

              - subcontractor's notice of non-payment where it isn't paid

              - subcontractor's notice of non-payment if it raises a dispute

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Our Guides to the Adjudication Provisions

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Most construction disputes under contracts procured after October 1, 2019 will be eligible for adjudication.  Upon a notice of adjudication being given, binding decisions will be made by an independent adjudicator in as quickly as 46 days or less.  Everyone in construction needs to be prepared.

  

      -click here for our adjudication process guide. 

       -click here for our adjudication timelines guide.   

     

     -click here for our cheat sheet for commencing an Adjudication

     -click here for our cheat sheet for responding to an Adjudication

 

      - adjudication forms will be made available when published under the Act

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Our Guide to Giving Documents Under the Act

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Many a document needs to be "given" in accordance with the Act, including the proper invoice and various of the notices required for the purposes of prompt payment and adjudication. 

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               -click here for our guide to giving documents under the Act

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Contractual Options to Manage the Changes

 

No standard form contacts have been brought into full compliance with the prompt payment provisions and the Act allows parties to agree on what must be included in a proper invoices, on many payment and invoice review processes (to better manage prompt payment) and on many aspects of the adjudication process.  If there was ever a time to revisit your form of contract, and to assess how contractual language can be used to manage and allocate risk, that time is now!

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      -click here for our guide to managing the Act's changes in contract

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