Changes to the Construction Act

Learn more about the new rules for owners, contractors and sub-contractors in the construction industry.

Summary

In 2015, the government launched an independent expert review of Ontario’s construction laws. The result of that review was a report, Striking the Balance: Expert Review of Ontario's Construction Lien Act.

Based on the recommendations in that report, Ontario has passed legislation to:

  • modernize the construction lien and holdback rules
  • help make sure that workers and businesses get paid on time for their work
  • help make sure payment disputes are addressed quickly and painlessly

The amendments to the construction lien and holdback rules came into effect on July 1, 2018. New prompt payment and adjudication processes, and amendments related to liens against municipalities, will come into effect on October 1, 2019.

The full text of the amended Construction Act and supporting regulations is available on e-Laws.

As part of the Bill 57, Restoring Trust, Transparency and Accountability Act, 2018 introduced on November 15, 2018, the government has introduced additional targeted amendments to the Construction Act. If passed, these changes would support the changes previously enacted and ensure that they work effectively.

What's changing

Construction lien and holdback rules

A construction lien is a charge or security on a property that can be registered on title to the property by anyone who has supplied services or materials to improve the property.

A holdback is a requirement that all owners, contractors and subcontractors withhold 10% of the cost of the services or materials they supply on a project. This helps to make sure that there is enough money to satisfy any lien claims that may come up.

Amendments to the construction lien and holdback rules and related regulatory changes came into force on July 1, 2018. You can find a chart describing some of the key changes here.

Some of the key changes include:

  • language in the legislation has been clarified to better reflect large-scale, public projects that have multiple owners
  • contractors and subcontractors have 60 days to register a lien and 90 days to start a court action
  • contractors and subcontractors have to follow specific bookkeeping rules to protect subcontractors in the event of bankruptcy
  • public sector owners, such as the Crown, municipalities and broader public sector organizations, are required to have a surety bond on public contracts above a prescribed amount, and alternative financing and procurement arrangements (AFPs) are subject to a minimum coverage limit, to protect subcontractors and workers if the general contractor files for bankruptcy
  • condominium unit owners are allowed to remove liens from their unit that are related to improvements to the common elements, such as corridors, lobbies, the garage and the roof
  • project owners and other payers are required to pay contractors and subcontractors holdbacks once the timeline to file liens has passed. This helps contractors and subcontractors plan, accept contracts for new work and have more certainty about when the holdback will be paid

Prompt payment

Once the legislation comes into effect on October 1, 2019:

  • construction laws will include a prompt payment system to make sure that contractors, subcontractors and workers are paid on time
  • owners and general contractors must agree to a deadline to submit an invoice. If they do not agree, the contractor will be required to submit invoices to the owner on a monthly basis
  • owners will be required to pay general contractors within 28 days after the contractor receives the invoice from the owner
  • general contractors have to pay subcontractors seven days after receiving payment from the owner
  • subcontractors have to pay other subcontractors within seven days of receiving payment from whomever hired them for the project
  • contractors and subcontractors will have a right to charge mandatory interest on late payments beginning when the amount is due. Interest would be the prejudgment rate determined under the Courts of Justice Act or the rate set out in the contract or subcontract, whichever is higher.

Payment disputes

In cases where there is a dispute about the amount owed or the quality of the work:

  • owners will be permitted to deliver a notice of non-payment to the contractor within 14 days of receiving the invoice from the project owner
  • contractors will be permitted to deliver a notice of non-payment within seven days to the subcontractor
  • subcontractors will be permitted to deliver a notice of non-payment within seven days to other subcontractors they hire

Resolving a dispute

Effective October 1, 2019, a new adjudication process will give people and businesses an alternative to going to court to resolve payment disputes.

The key features of the adjudication process are as follows:

  • adjudicators will be experts with extensive experience in the construction industry and experience or training in dispute resolution
  • a private body, known as an Authorized Nominating Authority (ANA), will develop and oversee training and qualification for adjudicators, maintain a registry of qualified adjudicators, establish a code of conduct for adjudicators, publish an annual report, and perform other functions outlined in the legislation and a new adjudication regulation
  • disputes will be heard by an adjudicator from the registry of adjudicators, who may be selected by the parties or by the ANA
  • the parties and the adjudicator may agree to the fees of the adjudicator. If they cannot agree, the fees will be determined by the ANA in accordance with a fee schedule published on the ANA’s website
  • the adjudicator will issue a determination in approximately six weeks, which will be binding on the parties, on an interim basis, until the dispute has finally been resolved in court or arbitration, or by agreement of the parties. If the parties are satisfied with the determination, they may agree to treat it as final.

If, after adjudication, the individual or business owing money refuses to comply with the determination, the party that is owed the money has the right to:

  • stop work under the contract;
  • charge mandatory interest on late payments; and
  • enforce the adjudicator’s determination by filing a certified copy in the Superior Court of Justice.

The adjudicator’s determination cannot be appealed, but it can be challenged on certain grounds, such as adjudicator bias.

New regulations

To support the changes, the government has made four new regulations to:

  • prescribe various forms
  • set out the court procedure for construction lien actions
  • establish monetary thresholds for surety bonding and holdback and the requirements for publication of notices
  • outline adjudication processes and the requirements for the ANA.

The new regulations have been published on e-Laws, and each new form is also available online.

The new regulations will take effect at the same time as the amendments they support.

When changes come into effect

The changes will take effect as follows:

  • The amendments to the construction lien and holdback rules and related regulatory changes came into force on July 1, 2018
  • The prompt payment and adjudication processes, the amendments related to liens against municipalities, and related regulations will come into force on October 1, 2019.

The transition rules are set out in section 87.3 of the amended legislation. Please refer to the legislation and consult a lawyer to determine how the rules apply to your situation.

Next steps

Bill 57, Restoring Trust, Transparency and Accountability Act, 2018

On November 15, 2018, the government introduced Bill 57, Restoring Trust, Transparency and Accountability Act, 2018. The bill contains a series of technical amendments to the Construction Act that would, if passed, support the changes previously enacted and ensure that they work effectively.

The new proposed changes would, if passed:

  • Revise and clarify the transition rules, including (but not limited to):
    • Clarifying that if an improvement is subject to the “old” (pre-July 1, 2018) Act, it is also subject to the old regulations, including forms;
    • Changing the current transition rule related to leasehold interests by providing that the existence of a leasehold interest is not relevant to the transition rules, subject to a narrow exception;
    • Setting out a specific transition rule for the amendments related to liens against municipalities;
    • Ensuring that the transition rule for prompt payment and adjudication addresses the commencement of a procurement process;
  • Revise and clarify the procedural rules for adjudication;
  • Clarify the fees that may be charged by the Authorized Nominating Authority; and
  • Make other technical and housekeeping amendments.

Designation of the Authorized Nominating Authority

An Authorized Nominating Authority (ANA) will be designated to oversee the adjudication process. The ANA will develop and oversee training and qualification for adjudicators, maintain a registry of qualified adjudicators, and perform other functions set out in the amended legislation and new adjudication regulation.

A private body will be designated by the Attorney General to act as ANA following a fair, open and competitive selection process customized to evaluate the quality, experience and knowledge of entities that apply for the ANA designation. At the time the selection process is administered, interested applicants will be invited to provide specified information to support their application.

The selection and subsequent designation of the ANA are being conducted by the Ministry of the Attorney General and more information will be publicly announced as soon as it becomes available.

Disclaimer

The Ministry of the Attorney General is not permitted to provide legal advice or opinions, interpret the law or conduct legal research for members of the public. Therefore, the general summary set out above is for information purposes only. A lawyer is in the best position to advise you about your legal rights and how the law applies to your situation.