Canada: Further Amendments To The Construction Act And Regulations

Last Updated: May 9 2019
Article by Jordan Diacur

Otto Von Bismarck Is Supposed To Have Said That Laws Are Like Sausages-It Will Be Better For Your Peace Of Mind If You Don'T Watch Them Being Made. We Are Now Squarely In The "Meat Inspection" Stage Of The New Construction Act, RSO 1990, C C.30 (The "Act"), With All That That Entails.

On December 6, 2018, The Act Received A Series Of Minor Amendments Designed To Correct And Clarify Certain Transitional Matters, As Well As Procedural Rules In The New Interim Adjudication Process.

The Full Text Of The AmendmentsCan Be Found In Schedule 8 To The Restoring Trust, Transparency And Accountability Act, 2018, S.O. 2018, C.17, An Omnibus Act That Was Prepared As Part Of The 2018 Ontario Economic Outlook And Fiscal Review. This Article Is Not Intended To Discuss All Of The Changes In A Comprehensive Manner (Many Of Which Relate To Correcting The French Text Of The Act-Cette Saucisse Épicée), But Rather To Summarize The Central Changes.

In Addition To The Amendments To The Act Itself, A Series Of Amendments To The Four Regulations Previously Passed Pursuant To The Act (That Is, O. Regs. 302/18, 303/18, 304/18 And 306/18-For Reasons Passing Understanding, O.Reg 305/18 Is An Unrelated Amending Regulation Under The Professional Engineers Act) Have Now Been Prepared, As Well. These Were Submitted For Public Comment In February, 2019, With The Goal Of Reflecting And Supporting The Amendments To The Act. The Comment Period Ended In Mid-March, And It Is Likely That The Final Version Of The Amended Regulations Will Be Announced Soon.

Amendments To The Act

The Amendments To The Act Are Primarily Common-Sensical. For Example, It Has Now Been Made Explicit That If An Improvement Will Remain Subject To The Old Construction Lien Act Under The Transition Rules, It Will Now Also Remain Subject To The Old Regulations, Including The Old Forms.


More Effectually, There Is A Correction Intended To Address The Several Competing Interpretations That Arose Regarding How A Leasehold Interest Was To Affect The Transition Provisions, Including Some That Took The Act To Mean That If There Were A Relevant Leasehold Interest, Say A 99-Year One, The Old Construction Lien Act Might Limp Along For The Next Century.Thankfully, That Is Not The Case. Now, The Existence Of A Leasehold Interest Is Not Relevant To The Transition Rules, Subject To A Fairly Narrow Exception: Where The Leasehold Interest Was First Entered Into Before July 1, 2018 And A Contract For The Improvement Was Entered Into, Or A Procurement Process For The Improvement Was Commenced, On Or After July 1, 2018, And Before December 6, 2018, The Old Construction Lien Act Will Continue To Apply. Otherwise, The New Act Will Apply.

Procurement Processes And Right To Information

Direction Has Also Now Been Given As To When A Procurement Process Will Have Been Commenced For Transition Purposes. Rather Than Working By Analogy From The List Of Examples Formerly Set Out In S.87.3(2), We Now Have S.1(4) Of The Act, Which Mandates:

Commencement Of A Procurement Process

(4) For The Purposes Of This Act, A Procurement Process Is Commenced On The Earliest Of The Making Of,

(A) A Request For Qualifications;

(B) A Request For Quotation;

(C) A Request For Proposals; Or

(D) A Call For Tenders.

Two New Subsections Have Also Been Added To S.87.3. The First, 87.3(3), Imposes Conditions Regarding Improvements To Premises In Which A Municipality Has An Interest. Of More General Application Is S.87.3(4). In Sum, It Clarifies That The Prompt Payment And Adjudication Provisions Will Not Apply To A Contract Or Subcontract Entered Into On Or After October 1, 2019, If A Procurement Process Was Commenced Before That Day By The Owner.

This Obviously Relates To The New Definition Setting Out When A Procurement Process Commenced. It Also Begs The Question Of How A Subcontractor Might Find That Information Out. An Addition To S.39 (Right To Information) Now Helpfully Provides That The Persons Set Out In That Section, Including Subcontractors, Are Entitled To Be Told The Date(S) That The Contract And/Or Subcontract Were Entered Into And The Date On Which Any Procurement Process Was Commenced.

Authorized Nominating Authority And Adjudicators

Other Changes Are Largely Procedural/Technical.

Section 13.3 Of The Act Is Amended To "Broaden The Powers Of The Authorized Nominating Authority" ("ANA"). While Formerly Rather Narrow, S.13.3(2)(A) Has Been Expanded And Now Permits The ANA To Set And Specify Fees, Costs Or Other Charges Related To The Administration Of Adjudication, Or (Per S.13.3(3)) To Set A Method For Determining These Amounts.

The Ministry Of The Attorney General ("MAG") Has Posted On Its Website An Email Address (ANAapplication@Ca.Ey.Com) Regarding A Call For Applications For A Private Body To Act As The ANA. The MAG Website Has Stated For Some Time That The Call For Applications Would Be Posted Online On March 15, 2019. That Appears Not To Have Happened Yet On The Ontario Tenders Portal; However, The MAG Website Continues To State That Responses To The Call For Applications Are Due By April 5, 2019. This Has Raised Suspicions That MAG May End Up Serving As The Interim ANA Come October 1 And The Dawn Of The Brave New Interim Adjudication World. We Shall See.

Section 13.6 Is Amended To Clarify That Parties Can Include Adjudication Procedures In Their Contracts, So Long As They Do Not Conflict With Those Set Out In The Act And The Regulations.

Section 13.11 Has Been Corrected To Ensure That The Party Referring A Matter To Adjudication Must Now Deliver The Documents On Which They Intend To Rely To Both The Adjudicator And The Responding Party, And S.13.11.1 Adds A Statutory Right Of Reply, The Lack Of Which Was Previously A Concern.

Non-Payment Of Holdback

A Final Important Change To The Act Relates To The Holdback Timeline, Or Rather Non-Payment Thereof. The Intent Of Section 27.1 (Non-Payment Of Holdback) Is To "Provide That If An Owner, Contractor Or Subcontractor Refuses To Make Payment Under Section 26 Of 27 Of The Act, The Person To Whom The Payment Is Owed May Refuse To Pay Out A Further Person From The Payment Owed, If The Person To Whom The Payment Is Owed Takes The Specified Steps", Which In This Regard Would Mean Referring The Issue To Adjudication And Providing The Required Notice Of Non-Payment. In Keeping With That Intention, The Timeline For The Publication Of A Notice Of Non-Payment Of Holdback Has Now Been Clarified To Also Run From The Date On Which The Contract Is Completed, Abandoned Or Terminated.

Amendments To The Regulations

Adjudications Under Part II.1 Of The Act

Regarding Adjudications, O.Reg 306/18 Would Be Amended To:

A. Set Out An Exception To The Otherwise Applicable Rule That The ANA Must Establish A Fee Schedule-The Exception Would Apply In Respect Of Fees, Costs Or Charges For Training And Qualification As An Adjudicator;

B. Clarify How And When The Party Who Gave The Notice Of Adjudication Must Provide The Documents On Which It Intends To Rely;

C. Set Out The Requirements For The Response To A Notice Of Adjudication, Including A Default Deadline That May Be Extended At The Discretion Of The Adjudicator; And

D. Clarify How These Procedural Requirements Should Be Interpreted In The Context Of A Consolidated Adjudication.

The Consultation Draft Of O.Reg 306/18 Poses Questions Regarding Two Procedural Issues For Which Specific Feedback Is Requested, Namely How Provision Of Adjudication Documents Is To Occur And The Default Deadline For A Response. Presumably, The Responses Will Affect The Outcome With Respect To Those Two Issues.

Regarding S.7 Of O. Reg. 306/18, Which Provides That The ANA Must Establish A Code Of Conduct For Adjudicators That Addresses, At A Minimum, "The Prescribed Matters" And Also Currently Provides That The Code Of Conduct Is Subject To The Approval Of The Minister, The Requirement For Ministerial Approval Is Being Removed.

Procedures For Actions Under Part VIII

O. Reg. 302/18, Which Deals With Actions, Would Be Amended To Provide That A Plaintiff May Join A Lien Claim And A Claim For Breach Of A Contract Or Subcontract.


With Respect To Forms, O. Reg. 303/18 Would Be Amended To Revise A Number Of Forms To Correct Errors, Provide Greater Clarity And Ensure Consistency With The Act.

The "General" Regulation

Finally, O. Reg. 304/18 Would Be Amended In Keeping With The Changes To Section 27.1 Of The Act To Set Out The Process For Contractors And Subcontractors To Provide Notice Of Non-Payment Of Holdback. If The Owner Gives The Contractor A Notice Of Non-Payment Of Holdback, The Contractor May Provide Notice To The Subcontractor Within Three Days Of Receiving That Notice, Indicating That The Contractor Will Not Pay The Holdback. The Subcontractor Could Then Provide Notice To Another Subcontractor Within Three Days Of Receiving The Notice From The Contractor, Indicating That The Subcontractor Will Not Pay The Holdback.

Future Updates

It Is By No Means Clear, Even After The Proposed Changes To The Regulations Are Approved, That The Sausage-Making Will Be Done. Further Amendments And Adjustments To The Act And Regulations Should Be Expected, Especially After The Interim Adjudication And Prompt Payment Processes 'Go Live' This Autumn. Areas Of Ambiguity And Difficulties Of Interpretation Will Certainly Be Sussed Out.

Read the original article on

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
7 Nov 2019, Seminar, Birmingham, UK

Providing content specifically tailored to the needs of GCs and Heads of Legal working in government organisations and their affiliates.

14 Nov 2019, Seminar, London, UK

Providing content specifically tailored to the needs of GCs and Heads of Legal working in government organisations and their affiliates.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions