No results found
Note to the Bar Regarding Vacating Motions and In-Person Court
May 15, 2025
The OBA Construction & Infrastructure Section has recently had the benefit of RSJ Firestone and the Associate Judges generously granting their time to speak to members of the Executive regarding vacating motions and ex parte court. Their Honours have asked the Section Executive to make members aware of certain procedures regarding vacating motions, and to solicit input regarding the potential resumption of in-person court appearances (note the survey link at the bottom!).
Learn moreReflections on a Legal Career: W. Andrew McLauchlin
W. Andrew McLauchlin | May 15, 2025
Over the course of my career in construction law, I have come to understand this truth: it takes ten years to get good at something, and ten years to earn a good reputation. Importantly, they are not the same ten years. The OBA has generously asked me to reflect on a career in construction law. Whether you are three, thirteen, or thirty years into practice, I hope these reflections offer something useful, on both the practice of law and the life that comes with it.
Learn moreBreaking Down the Walls: A Series on Construction Delay, Part 3
In the fast-paced world of construction, delays and disruption can pose significant challenges to project success. In this Breaking Down the Walls series, Gary Brummer, a partner at Margie Strub Construction Law LLP, and Jacob Lokash, an associate at the firm, draw upon their extensive legal expertise to explore the complexities of construction delays. They have collaborated with Thomas Certo, a managing director in the Construction Disputes and Advisory Group at Ankura Consulting Group LLC, whose insights into the technical aspects of delay analysis provide a comprehensive perspective on this critical issue.
Learn moreThe “Judicial Review” That Isn’t: Construction Act’s Incorrect Use of Term Creates Confusion...
Jay Nathwani, partner, Margie Strub Construction Law LLP | May 15, 2025
When is “judicial review” not judicial review? When it’s judicial review of an adjudicator’s determination under the Construction Act. Why is it not judicial review? Because the drafters of the Construction Act used the wrong term when they were otherwise borrowing wholesale from the test to set aside an arbitrator’s award under the Arbitration Act.
Learn more“The Long and Winding Road” : Reflections on an Atypical Career
Theodore B. (Ted) Rotenberg | March 31, 2025
For reasons not entirely clear to me (except perhaps my longevity), our section editor has asked me to reflect upon my career and offer whatever pearls of wisdom I may have gleaned.
Learn moreSelected Career Reflections: Donald Marston
Donald Marston | March 31, 2025
As requested by the Editor of our Construction and Infrastructure Newsletter, Jay Nathwani, these career reflections are written for inclusion in our Section’s Newsletter Reflections Series. I’m pleased to have been asked to participate, although somewhat reluctant to provide personal reflections. In setting the stage for my remarks I’ll focus briefly on some historical aspects of my career and particularly on the broad range of diverse opportunities that I encountered that enabled me, over the years, to expand the scope of my practice in Canada and internationally.
Learn moreBreaking Down the Walls: A Series on Construction Delay, Part 2
In the fast-paced world of construction, delays and disruption can pose significant challenges to project success and execution. Throw concurrent delays into the mix, and it can be challenging to assign responsibility. This article seeks to demystify these concepts as they relate to delay claims and provide the reader with some useful takeaways for use in practice.
Learn moreIssues with Annual Holdback Release and Lien Expiry on P3 Projects and Beyond
The pending amendments to the Construction Act (“the Act”) include a new requirement for the annual release of holdback, without the right to set off against holdback. However, while implementing a number of significant changes to the Act, the Legislature elected not to close an identified gap in the Act related to Public Private Partnership (“P3”) projects. As a result, a significant issue is created in the context of mandatory annual holdback released on P3 projects in Ontario.
Learn moreBreaking Down the Walls: A Series on Construction Delay
In the fast-paced world of construction, delays can pose significant challenges to project success. In this Breaking Down the Walls series we simplify the fundamentals of construction delays, providing readers with the necessary tools to proactively identify and assess delays on their own projects in Canada, and focus on the damages that are often claimed as a result of schedule delay.
Learn moreEdward W. Lynde and Paul Hancock | January 07, 2025
The type of property interest a mining company has in the lands dictates the manner in which liens are preserved and perfected. Consequently, when liening lands on which a mine is located the paramount consideration is determining the nature of the owner’s interest in the mining claim.
Learn more
The recent Divisional Court case of Demikon Construction Ltd. v. Oakleigh Holdings Inc., 2024 ONSC 6261 establishes that reliance on a direct payment pursuant to s. 28 of the Construction Act, R.S.O. 1990, c. C.30 is only valid if that payment was made to a person “having a lien." Failing to ensure compliance may not result in such a payment being a proper basis to reduce lien security posted into court.
Learn more
Liability for Flow-Through Claims: A Puzzling Aspect of Walsh v. TTC
Jay Nathwani, partner, Margie Strub Construction Law LLP | October 21, 2024
An 849-paragraph testament to the grinding weight of our civil justice system, the decision in Walsh Construction v. Toronto Transit Commission et al., 2024 ONSC 2782, was arrived at after a trial stretching over 19 months. In spite of the achievement that the decision represents, its findings on flow-through claims of subcontractors represent a potentially troubling precedent for the industry, and are puzzling as a matter of law. They bear further scrutiny on the appeal currently underway.
Learn moreThe Use of AI Tools for Expert Work
Augusto Patmore, P. Eng, MBA (Delay Expert), A&M managing director | October 21, 2024
Time is of the essence when it comes to the role of a delay expert in a construction dispute. With cases increasingly involving vast amounts of data, AI has become a formidable tool for delay experts. However, AI tools are not without their limitations. Human oversight is still crucial to ensure both reasonableness and accuracy in legal proceedings.
Learn more
Ontario Court Clarifies Test for Owner’s Liability Under OHSA
The Ontario Superior Court of Justice recently provided insight into what steps an owner must take to establish a defence of due diligence and avoid liability under the Ontario Occupation Health and Safety Act, R.S.O. 1990, c. O.1 (“OHSA”).
Learn more
Adversary to Ally? Disclosure Required When the Litigation Landscape Shifts
Sharon Sam, partner, Margie Strub Construction Law LLP | October 21, 2024
Practitioners must remain attentive to their disclosure obligations. Any settlement agreement (or partial settlement agreement) reached between some parties, but not others, that entirely changes the landscape of the litigation in a way that significantly alters the dynamics of the litigation must be disclosed to the non-settling parties. The obligation to disclose is immediate and unequivocal.
Learn more
The key takeaways from the Westport decision are that sureties will be entitled to assert priority against a wide range of funds, including those awarded in construction adjudications, as long as their indemnity agreements are drafted broadly. While ensuring the flow of funds through adjudication is important, a competing and equally important consideration is not disturbing the construction bonding regime.
Learn more
19th Annual Golf Day and Lunch Program a Great Success
OBA Construction and Infrastructure Law Section Executive | July 10, 2024
Last month, the OBA Construction and Infrastructure Law Section hosted its 19th Annual Golf Day & Lunch Program at Eagles Nest Golf Club in Maple, Ontario. The sold-out event was a huge success thanks to our co-chairs, organizers, core sponsors and speakers.
Learn more
“Oh Sheet!” - The Importance of Detailed Time Sheets in Proving Quantum of Damages
Ashley Landesman | July 08, 2024
In Sjostrom Sheet Metal Ltd. v. Geo A. Kelson Company Limited, 2023 ONSC 4959, the Ontario Superior Court of Justice affirmed several key legal principles, including the importance of carefully drafted pleadings, the validity of oral contracts, the significance of good record-keeping in quantifying damages, adherence to contractual default notice provisions, and the consequences that may flow from ambiguous or incomplete change orders.
Learn more
July 08, 2024
In response to Walsh Construction v. Toronto Transit Commission et al., 2024 ONSC 2782, the Superior Court has a offered a number of valuable takeaways for the construction industry and construction law practitioners, including counsel and arbitrators, regarding what can be expected in the resolution of a complex construction claim.
Learn moreUnregistered Liens Withdrawn Live On: Gay Company Limited v. 962332 Ontario Inc.
Ivan Merrow and Giorgina Chum | April 24, 2024
Once lien rights are extinguished, they are extinguished forever. After a lien is first registered on title, does a withdrawal of the Claim for Lien instrument forever extinguish those lien rights? In Gay Company Limited v. 962332 Ontario Inc., 2023 ONSC 6023, survival of the claimant’s lien rights turned on this question.
Learn morePracticalities of Notices of Non-Payment
Ontario is now a little over four years into the new prompt payment requirements under the Construction Act, R.S.O. 1990, c. C.30. While there have been many articles on the written requirements set out in the new Part I.1 of the Act, not much is set in stone as far as the implementation and enforcement of these new provisions. More particularly, some members of the construction industry are finding it hard to understand and follow the requirements pertaining to Notices of Non-Payment.
Learn moreR. v. Greater Sudbury (City) and the Defence of Due Diligence
Catherine DiMarco and Andy Balaura, Pallett Valo LLP | April 23, 2024
On November 10, 2023, the Supreme Court of Canada rendered its much-anticipated decision in the matter of R. v. Greater Sudbury (City). The decision is noteworthy in its expanding, in a significant way, the health and safety obligations of an “owner” of a construction project under Ontario’s Occupational Health and Safety Act, R.S.O., 1990, c. O.1.
Learn more.jpg?width=160&height=140&ext=.jpg)
Adjudication: Ontario Decision a Reminder that “Rough Justice” is Not Real Justice
Paul Ivanoff, partner, Osler, Hoskin & Harcourt LLP | January 15, 2024
With the introduction of prompt payment and adjudication into Ontario’s Construction Act, the pursuit of “rough justice” became a new tool in the tool-kit of project participants. In spite of its procedural and other frailties, adjudication arrived along with a legislated provision that “the determination and reasons of an adjudicator are admissible as evidence in a court.” The addition of this “admissibility” provision raises interesting questions.
Learn more
In Praxy Cladding Corp. v. Stone Lamina Inc., the Ontario Superior Court reviewed the process for amending pleadings in proceedings under the Construction Act, and in doing so, provided important clarity as to what constitutes an admission, as well as the distinction between an admission from a pleading versus an admission arising out of an examination for discovery. The authors consider the key takeaways from this decision with respect to pleadings and conducting examinations for discovery.
Learn more
Ontario OH&S Update – Supreme Court upholds ONCA decision in R v. Greater Sudbury (City)
Sahil Shoor, partner, Gowling WLG (Canada) LLP | January 15, 2024
On November 10, 2023, the Supreme Court of Canada issued a split decision in R v. Greater Sudbury (City). This precedent-setting decision significantly expands the health and safety obligations of an “Owner” under Ontario’s Occupational Health and Safety Act.
Learn more
Prompt Payment Gaps in the Construction Act
Ontario’s prompt payment system under the Construction Act has changed the way that parties to construction projects understand their payment obligations. But there are several significant gaps in the prompt payment scheme that produce significant uncertainty and risk for contractors. In this article, we discuss three such gaps.
Learn more
