On October 3, 2017, members of the OBA Construction Law Section and other interested attendees were privileged to have the opportunity to be guided through the upcoming amendments to the Construction Lien Act by a distinguished panel at the OBA’s CPD event, “The Authoritative View of the Construction Lien Amendment Act, Bill 142.”
Capably chaired by Derek Freeman of FreemanLaw – Barristers and Maria Ruberto of Pallett Valo LLP, the panel discussed the background to Bill 142 and provided an overview of its changes, before delving into greater detail regarding some of its most consequential features.
Howard Wise of Goodmans LLP explained why Bill 142 was introduced, touching on the changes to legal practice and the construction industry since the Act was introduced in 1983. Mr. Wise reminded participants of the genesis of the recent review in industry concerns over prompt payment, and provided a useful overview of the extensive multi-phase consultative process undertaken by the advisory panel chaired by Bruce Reynolds and Sharon Vogel which ultimately produced the Striking the Balance report, almost all the recommendations from which have been incorporated into Bill 142.
For an overview of the changes proposed by Bill 142, the audience was guided by Ted Betts of Gowling WLG LLP, Karen Groulx of Dentons Canada LLP and Ted Rotenberg of Burstein & Greenglass LLP. They touched on the changes affecting P3 projects, bonding requirements, trust provisions, holdback requirements, substantial performance, lienability, and the preservation, perfection and vacating of liens.
Turning to some of the most novel features of Bill 142, Sandra Astolfo of WeirFoulds LLP, Geza Banfai of McMillan LLP, and Yonni Fushman of Aecon Group Inc. discussed the new prompt payment regime which the Bill would bring into effect – a sea-changes for the industry and in some ways the genesis of the current Bill after a private member’s attempt to legislate prompt payment in the previous provincial parliament. Next, on the topic of statutory adjudication, Master Carol Albert, Duncan Glaholt of Glaholt LLP and Marcia Oliver of Advocates LLP provided the audience with an enlightening look at the promise and peril of statutorily-mandated fast-track dispute resolution as it has been practiced in the UK for several years now.
Finally, Howard Krupat of DLA Piper (Canada) LLP, David Outerbridge, Torys LLP and Patricia Skringer of Aecon Group Inc. explained the likely impact of Bill 142 on construction contracts – including the many changes which will be required to the standard-form contracts with which we are all familiar.
The panel was an enlightening and comprehensive overview of a topic of critical importance and great interest to the construction bar.
About the author
Jay Nathwani, Glaholt LLP