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What is Construction Law?

Best Construction lawyers in Ontario, Canada as ranked by Lexpert

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:

  • Construction labour relations lawyers in Ontario
  • Occupational health and safety lawyers in Ontario
  • Property development lawyers in Ontario

 

What regulations are construction lawyers in Ontario concerned with?

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.

 

What laws do construction lawyers focus on?

The Construction Lien Act or Construction Act of Ontario was first enacted in 1983 and has been recently amended last 2017 through Bill 142. Below are some of its amendments:

 

Prompt Payment (Part I.1, the Act)

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.

 

Adjudication (Part II.1, the Act)

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.

 

Lien (Part III and V, the Act)

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.

 

Holdbacks (Part IV, the Act)

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.

 

Trust Funds (Part II, the Act)

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.

 

Mandatory Performance and Payment Bonds (Part XI.1, the Act)

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.

 

What is Section 32 of Ontario's Construction Act?

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.

 

What is Section 39 of Construction Act?

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.

 

What is Section 26 of the Construction 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.

 

Do construction workers get overtime pay?

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.

Glenn W. Ackerley
Glenn W. Ackerley
Year called to bar: 1989
Toronto, Ontario
WeirFoulds LLP
Misty S. Alexandre
Misty S. Alexandre
Year called to bar: 2007
Saskatoon, Saskatchewan
Robertson Stromberg LLP
H. Beth Allard
H. Beth Allard
Year called to bar: 1994
Vancouver, British Columbia
Norton Rose Fulbright Canada LLP
Matthew R. Alter
Matthew R. Alter
Year called to bar: 1987
Toronto, Ontario
Cassels Brock & Blackwell LLP
Jason J. Annibale
Jason J. Annibale
Year called to bar: 2002
Toronto, Ontario
McMillan LLP
Alison Archer
Alison Archer
Year called to bar: 2010
Edmonton, Alberta
Reynolds Mirth Richards & Farmer LLP
Gerry Argento
Gerry Argento
Year called to bar: 2014
Montréal, Québec
Miller Thomson LLP
Jeffrey A. Armel
Jeffrey A. Armel
Year called to bar: 1994
Toronto, Ontario
Koskie Minsky LLP
Sandra Astolfo
Sandra Astolfo
Year called to bar: 1995
Toronto, Ontario
WeirFoulds LLP
Denise L. Bambrough
Denise L. Bambrough
Year called to bar: 1992
Toronto, Ontario
Borden Ladner Gervais LLP (BLG)
Geza R. Banfai
Geza R. Banfai
Year called to bar: 1978
Toronto, Ontario
McMillan LLP
Peter D. Banks
Peter D. Banks
Year called to bar: 2003
Calgary, Alberta
Borden Ladner Gervais LLP (BLG)
Kevin E. Barr
Kevin E. Barr
Year called to bar: 2000
Calgary, Alberta
Borden Ladner Gervais LLP (BLG)
Artem N. Barsukov
Artem N. Barsukov
Year called to bar: 2012
Edmonton, Alberta
Bennett Jones LLP
François Beauchamp
François Beauchamp
Year called to bar: 1979
Montréal, Québec
De Grandpré Chait LLP
Stephen J. Berezowskyj
Stephen J. Berezowskyj
Year called to bar: 1998
Vancouver, British Columbia
Singleton Urquhart Reynolds Vogel LLP
Richard Bergeron
Richard Bergeron
Year called to bar: 1980
Saguenay, Québec
Cain Lamarre
Annie Bernard
Annie Bernard
Year called to bar: 2003
Montréal, Québec
Fasken Martineau DuMoulin LLP
Ted Betts
Ted Betts
Year called to bar: 1997
Toronto, Ontario
Gowling WLG
Antoine Bigenwald
Antoine Bigenwald
Year called to bar: 1992
Montréal, Québec
Casavant Bédard
Daniel A. Boan
Daniel A. Boan
Year called to bar: 2000
Toronto, Ontario
Borden Ladner Gervais LLP (BLG)
Brendan D. Bowles
Brendan D. Bowles
Year called to bar: 2000
Toronto, Ontario
Glaholt Bowles LLP
Dražen F. Bulat
Dražen F. Bulat
Year called to bar: 1990
Vaughan, Ontario
Miller Thomson LLP
Horia Bundaru
Horia Bundaru
Year called to bar: 2006
Montréal, Québec
Norton Rose Fulbright Canada LLP
Maxime Cantin
Maxime Cantin
Year called to bar: 1998
Québec City, Québec
Norton Rose Fulbright Canada LLP
Etienne Chauvin
Etienne Chauvin
Year called to bar: 2010
Montréal, Québec
De Grandpré Chait LLP
Krista R. Chaytor
Krista R. Chaytor
Year called to bar: 2000
Toronto, Ontario
WeirFoulds LLP
Joseph Cosentino
Joseph Cosentino
Year called to bar: 1997
Toronto, Ontario
Goodmans LLP
Stephen P. Coyle
Stephen P. Coyle
Year called to bar: 1993
Vancouver, British Columbia
Norton Rose Fulbright Canada LLP
Mark Crane
Mark Crane
Year called to bar: 2005
Toronto, Ontario
Gowling WLG
Kenneth W. Crofoot
Kenneth W. Crofoot
Year called to bar: 1984
Toronto, Ontario
Goodmans LLP
David Curtis
David Curtis
Year called to bar: 2006
Vancouver, British Columbia
Fasken Martineau DuMoulin LLP
Simon Daigle
Simon Daigle
Year called to bar: 2012
Montréal, Québec
Borden Ladner Gervais LLP (BLG)
Jean Patrick Dallaire
Jean Patrick Dallaire
Year called to bar: 2003
Montréal, Québec
Langlois Lawyers
Jean Patrick Dallaire
Jean Patrick Dallaire
Year called to bar: 2003
Québec City, Québec
Langlois Lawyers
Jean-Pierre Dépelteau
Jean-Pierre Dépelteau
Year called to bar: 1970
Montréal, Québec
Dentons Canada LLP
Claudia Déry
Claudia Déry
Year called to bar: 1993
Montréal, Québec
Norton Rose Fulbright Canada LLP
Catherine DiMarco
Catherine DiMarco
Year called to bar: 2005
Mississauga, Ontario
Pallett Valo LLP
Jared Epp
Jared Epp
Year called to bar: 2013
Saskatoon, Saskatchewan
Robertson Stromberg LLP
Anna M. Esposito
Anna M. Esposito
Year called to bar: 1987
Mississauga, Ontario
Pallett Valo LLP
Yannick Forget
Yannick Forget
Year called to bar: 2009
Montréal, Québec
Miller Thomson LLP
Olivier Fraticelli
Olivier Fraticelli
Year called to bar: 1985
Montréal, Québec
LCM Attorneys Inc.
Nicolas Gagnon
Nicolas Gagnon
Year called to bar: 1990
Montréal, Québec
Lavery, de Billy, L.L.P.
Jesse Gardner
Jesse Gardner
Year called to bar: 2014
Toronto, Ontario
Singleton Urquhart Reynolds Vogel LLP
Guy Gilain
Guy Gilain
Year called to bar: 1985
Montréal, Québec
Miller Thomson LLP
Roger J. Gillott
Roger J. Gillott
Year called to bar: 1996
Toronto, Ontario
Osler, Hoskin & Harcourt LLP
Duncan W. Glaholt
Duncan W. Glaholt
Year called to bar: 1979
Toronto, Ontario
Glaholt ADR Inc.
W. Donald Goodfellow
W. Donald Goodfellow
Year called to bar: 1965
Calgary, Alberta
Goodfellow & Schuett Law
Ian Gosselin
Ian Gosselin
Year called to bar: 1992
Québec City, Québec
Norton Rose Fulbright Canada LLP
Brook Greenberg
Brook Greenberg
Year called to bar: 1998
Vancouver, British Columbia
Fasken Martineau DuMoulin LLP
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