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Issues 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 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 moreThe 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 moreLiability 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 moreOntario Court Clarifies Test for Owner’s Liability Under OHSA
October 21, 2024
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 moreAdversary 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 moreThe 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 more19th 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 moreJuly 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 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 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 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 moreAdjudication: 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 moreIn 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 moreOntario 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 morePrompt 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 moreInterim Adjudication - the Wild West of Construction Dispute Resolution
Dan Fridmar, Fridmar Professional Corporation | May 10, 2023
Three years into the Interim Adjudication process under Part II.1 of the Construction Act, it is apparent that what was promised as a quick and dirty approach to dispute resolution is turning into a fly-by-night process that creates more problems than solutions. In this article, the author shares his thoughts on some of these problems.
Learn moreCan the construction lien and adjudication regimes co-exist in Ontario and work seamlessly, in harmony together? This article explores certain unintended pitfalls, shortcomings, and incongruencies associated with combining the regimes, as illustrated in the wording of the statute itself as well as in recent case law on adjudication.
Learn moreCompare and Contract: CCDC 2 and CCDC 5A
James De Melo, lawyer, Construct Legal | March 16, 2023
This article explores two of the most common construction contract formats in Ontario, the CCDC 2 – Stipulated Price Contract and the CCDC 5A Construction Management Contract – For Services, and identifies some of the similarities and differences between these project delivery models.
Learn morePaul Conrod, Faren Bogach, and James De Melo of Construct Legal | January 10, 2023
This article discusses three recent Ontario court cases in the developing area of Construction Act adjudications, as well as some unanswered questions and lessons learned from the cases and the authors’ own experiences with adjudications so far.
Learn moreNew Guidance on Jurisdiction Arguments for Adjudications
Chad Kopach, Partner at Blaney McMurtry LLP | January 10, 2023
In this article, the author discusses the Divisional Court’s confirmation that adjudicators can determine their own jurisdiction, and the Court’s discussion on whether abandoning or terminating a contract means the contract has “ceased to exist."
Learn moreReferral of Lien Actions to Small Claims Court
Darina Mishiyev, Senior Law Clerk, Margie Strub Construction Law LLP | January 10, 2023
Referral of lien actions to the Small Claims Court is a new process that is now available to the parties if the lien action is for an amount that is within the monetary jurisdiction of the Small Claims Court. The author created this very useful step-by-step guide that describes the transition of a lien action from the Superior Court of Justice to the Small Claims Court once the matter is referred to the Small Claims Court Deputy Judge.
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