The practice of Construction Lawyers in Ontario is generally understood to comprise the provision of advice and representation, whether by way of negotiation, judicial proceedings, alternative dispute resolution, mediation or arbitration, in all matters relating to the construction process including preparation of contract documentation and related agreements, contract negotiations, claims for extras/credits, claims arising from alleged design changes, claims under bid bonds, performance bonds, labour and material payment bonds, lien bonds and judgment bonds, claims arising from delay, claims for consequential damages, claims in relation to environmentally hazardous materials and for unanticipated subsurface soil conditions encountered during construction, claims for negligence against consulting engineers and architects, and claims for breach of statutory trust.
Please note that the Lexpert directory has separate sections for:
As to adjudication in relation to the Construction Act of Ontario, only adjudicators listed under the registry of the Authorized Nominating Authority (ANA) may be allowed to adjudicate construction disputes. They would also have to undergo the necessary training and other requirements by the Construction Act and the ANA, which also gives them the power to cancel any registration of said adjudicators.
The Construction Act of Ontario provides that new mandatory minimum time period for payment of construction contracts. Now, the owner of the construction project is required to pay the contractor within 28 days from receipt of a “proper invoice”, as defined in section 6.1. After receipt of payment, the contract must in turn pay the subcontractor included in the said invoice within 7 days.
Under section 6.4(2), when an owner would want to dispute a proper invoice, a “notice of non-payment" must be given to the contractor, which specifies the amount not paid and the reasons for non-payment. Construction lawyers in Ontario can certainly help facilitate this.
When problems arise, the Act states that adjudication should be done immediately to resolve any construction disputes. The Act provides that disputes shall be resolved by the adjudicator within 30 days from receiving the documents from the party requesting the adjudication. Any matter falling under section 13.5(1) may be referred to adjudication.
The effect of the determination, as provided in 13.15 (1), shall be binding upon the parties, until the matter is determined by a court; or determined by way of arbitration under the Arbitration Act; or by a written agreement between the parties.
A lien on a property is created when a person who supplies services or materials to an improvement for an owner, contractor or subcontractor for the price of the said services or materials he/she has supplied (Section 14(1), the Act). Previously, the person who has a right to lien – contractors, workers, or any person – must file or perfect the lien within 45 days. But after the amendments, it has been extended to 60 days, but still from the date of the completion or abandonment of the project.
The extension of the period for the perfection of a lien connected with the amendments on prompt payment and adjudication. This is to encourage parties to first comply with their agreed payment, to proceed with adjudication if payment is not effected, before going to the enforcement of liens. In all stages, construction lawyers are there to facilitate the enforcement of any of those rights. What is prevented is for parties going to litigation which is more costly and tedious.
Under Section 22(1) of the Construction Act of Ontario, holdbacks are the amount equal to 10% of every payment made as a security for any potential liens. These amounts are “held back” by a payor in a construction project, either the owner who must pay the contractor, or the contractor themselves who needs to pay the subcontractors, until all potential liens have been discharged.
Currently, there are new forms of holdbacks other than as funds, such as letter of credit; demand-worded holdback repayment bond; or in any other form to be agreed by the parties, as per Section 22(4). Payment of holdback can also be made on an annual basis (Section 26.1), phased basis (Section 26.2), or design phase (Section 26.1(3)).
If payments on holdback cannot be made, there should be notice of non-payment, resulting to the matter being referred to adjudication.
Amendments to the Construction Act of Ontario now imposes new duties on contractors and subcontractors. Both now become trustees of trust funds, and are required to deposit payments they receive in a bank account after the trustee’s name.
In connection with the trust funds established by the contractors and subcontractors, Section 85.1 now requires contractors who, upon entering a “public contract”, “shall furnish the owner with a labour and material payment bond.” The coverage of the amount shall be 50% of the contract, or any other percentage of the contract price.
Construction Act of Ontario in Section 32 provides that a payment certifier must issue a Certification and Declaration of the Substantial Performance. This certifies that, at a certain date, the contractor has substantially completed the project. In the absence of a payment certifier, the owner and the contractor may jointly execute said certification.
Section 39 of Ontario’s Construction Act provides that any person, or a person who has a lien, is a beneficiary of a trust, or is a mortgagee has the right to information from the owner, contractor, subcontractor, mortgagee, or trustee. Any person refusing to provide the requested information shall be liable under the Act.
The Construction Act of Ontario in Section 26 states that the payment of basic holdback is required to discharge all claims with respect to the lien that have already expired. Previously, the release of holdback was not mandatory, but is now made required after the amendments to the Act.
As a general rule, under the Ontario Regulation 285/01 and 288/01, constructions workers are not entitled to daily or weekly limits on hours of work. Hence, they do not get overtime pay.
Other benefits constructions workers are not entitled to are daily rest periods, time off between shifts, weekly/bi-weekly rest periods, notice of termination/termination pay, and severance pay. However, this rule does not apply to construction workers who work in the maintenance, road building, or sewer and watermain construction. A construction lawyer based in Ontario would be able to advise on the differences here.
Want to know more about Ontario’s construction law? Consult with the best construction lawyers in Ontario by heading down below to our Lexpert Ranked list.