Ontario Court Clarifies the Meaning of "Improvement" Under the Construction Lien Act

Introduction

In Bradley-Kelly Construction Ltd. v GIP Construction Ontario East Ltd. et al., 2026 ONSC 5180, the Ontario Superior Court of Justice addressed a question of central importance to construction lien law: when does work performed by a subcontractor across multiple sites on a single project constitute work on a single “improvement” for the purposes of lien preservation timelines under the Construction Lien Act, R.S.O. 1990, c. C.30 (the “Act”)?

Background

The dispute arose in the context of the City of Ottawa’s Trillium Line Extension — Ottawa Stage 2 Light Rail Transit project (the “Project”). AtkinsRéalis Construction (Pacific) Inc. (“Atkins”) was the general contractor, and GIP Construction Ontario East Ltd. (“GIP”) was engaged as a subcontractor under a single subcontract covering works at several locations.

Bradley-Kelly Construction Ltd. (“Bradley-Kelly”), a sub-subcontractor, entered into two separate subcontracts with GIP — one for the Earl Armstrong Road site (the “EA Subcontract”) and one for the New Walkley Yard (the “Walkley Subcontract”). The parties all agreed that the scope of work under Bradley-Kelly’s subcontracts was for work on the Project.

Bradley-Kelly last worked at the Earl Armstrong site on December 27, 2023, and at the Walkley site on January 25, 2024, and preserved separate claims for lien on February 15, 2024.

The parties agreed on the quantum of either lien, and the fact that the old Construction Lien Act provisions governed.

The Central Issue on the Motion

As Justice Perron succinctly put it:

At the heart of these motions, there is one central issue in dispute that ultimately determines whether the EA Claim for Lien was timely: was the project a single improvement, or was the work performed by Bradley-Kelly completed on two sites that constitute separate improvements?[1]

Under subsection 31(3)(a)(ii) of the Act, a subcontractor’s lien expires 45 days after the person last supplied services or materials to the “improvement”.

If the work was a single improvement, Bradley-Kelly’s last day of supply was January 25, 2024, and the Earl Armstrong lien preserved on February 15, 2024, was preserved within the 45-day window. If the work constituted multiple improvements, then the last day of supply at Earl Armstrong was December 27, 2023, and the 45-day period would have expired on February 13, 2024 — two days before the lien was preserved.

Atkins did not dispute the timeliness of the lien registered on the Walkey site but brought a motion to declare the lien registered on the Earl Armstrong site to be expired.

Ultimately, Justice Perron dismissed Atkins’ motion, finding that the Earl Armstrong lien was timely, having been registered within 45 days of the last date of supply of services and materials to the “improvement”.

The Legal Framework: Defining “Improvement”

The Court reviewed the statutory definition of “improvement” under section 1 of the Act and the established jurisprudence on determining whether work was performed on the “same improvement”. Justice Perron confirmed that the question of “same improvement” is largely a “fact-finding exercise” and that the governing principle is the establishment of some “nexus” between the work done that makes it a “common effort” — the coordination of the contract work toward a ”common purpose or goal”, as the same improvement can have one contract or many contracts. [2]

Justice Perron also relied on the Divisional Court’s decision in Prasher Steel Ltd. v Pre-Eng Contracting Ltd., 2024 ONSC 4772, which held that it is immaterial whether a subcontractor provides services or materials under one or multiple subcontracts — the lien arises upon first supply and persists until expiry following the date of last supply of services or materials to the improvement.

Analysis and Decision

In her analysis, Justice Perron found that Bradley-Kelly’s work at both sites was performed on a single improvement, relying on the following:

1. Overwhelming evidence of a single “improvement”: The court relied on the fact that there had been a single procurement process and prime contract; unified general contractor oversight; a single certificate of substantial performance issued in respect of the Project; a single holdback fund for the Project; and the fact that the Project could not operate until work on all sites were complete.
2. Contiguity of the lands: Bradley-Kelly adduced evidence that the lands on which the work was performed were contiguous — rails connected the main light rail track to the New Walkley Yard, and the Earl Armstrong road widening was done immediately in front of the Bowesville Park and Ride station. Drawing on the Divisional Court’s reasoning in Caledon (Town) v 2220742 Ont. Ltd. 2024 ONSC 4555, Justice Perron held that contiguity of land is a relevant factor in determining what constitutes an “improvement”. Unlike in Caledon, where the lands were not contiguous, the evidence here demonstrated the opposite.

Justice Perron noted that there was an absence of any evidence in Atkins’ materials that would support the existence of multiple improvements in this case.

Ultimately, Justice Perron agreed that “an ‘improvement’ under the under the Act is the alteration, addition, repair, construction, erection, or installation on the same or contiguous lands, of coordinated work being completed towards a common purpose or goal”.[3]

Conclusion

Bradley-Kelly v GIP Construction clarifies how the concept of “improvement” applies to large-scale, multi-site infrastructure projects. The decision underscores the importance of substance over form: where work at different sites serves a common purpose, is carried out under a unified project structure, and is performed on contiguous lands, it could be treated as a single improvement for lien preservation purposes.

For subcontractors and sub-subcontractors on complex projects who may enter into multiple contracts, the decision provides some guidance that lien timelines will be assessed by reference to the last date of supply to the improvement as a whole, not to individual sites or subcontracts.

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