The Generals - Fall/Winter 2017 - 24

FEATURE

Construction Lien Act Amendment -
A Construction Owner's Perspective
By Glenn A. Clarke, Controller of Plant, Simcoe Muskoka Catholic District School Board

T

he introduction of Bill 69-2013, Prompt
Payment Act, in the Ontario legislature
evoked a lot of discussion in Ontario's
construction industry. Terms in the draft
Act were problematic to numerous owners due
to a lack of consultation and input; however, the
challenges pertaining to payment for properly
completed construction work, in a timely manner, were acknowledged by the construction
industry as a whole and politicians as being an
important advancement for the sector.
The impetus from the subsequently tabled
Prompt Payment Act was not lost, but rather
channelled within a comprehensive review of
the Construction Lien Act (CLA). This review was
initiated by the Ministry of the Attorney General
in February 2015 with the stated mandate to
modernize construction lien and holdback rules,
introduce a prompt payment system and create
a new process to speed up dispute resolution. It
was a major undertaking that held wide-spread
implications for Ontario's construction industry.
Through an exhaustive review including more
than 60 stakeholders, and studies on industry
24

practices in other jurisdictions world-wide, the
team at Borden Ladner Gervais LLP, at the request
of the Attorney General, prepared a comprehensive
report identifying 100 recommendations addressing issues in all three areas of the review mandate.
The introduction of Bill 142, Construction Lien
Act Amendment, to the Legislature on May 31,
2017 incorporates the majority of recommendations presented in the report and, subject to
approval, will provide important updates to the
28-year-old CLA. The changes in the proposed
Bill 142 'strike a balance' with all construction
contract project stakeholders: owners, consultants, contractors and subcontractors.
The amendments in the Bill will result in
changes to the contractual process for construction project owners within all three areas
of the mandate.

Modernization of the
Construction Lien Act:
* The financial calculations to achieve
Substantial Performance have been adjusted
to reflect the change in construction costs.

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This will provide for an earlier project certification which will allow for an advanced flow
of the retained lien holdback funds to the
general contractors and on to the subcontractors. An earlier release of funds will benefit
those trades that have completed work.

Prompt Payment:
* There is a defined requirement for the contractor to submit a 'proper invoice' to allow
for the commencement of the clock on the
payment terms, with the obligations for a
proper invoice being specified. This is a significant improvement over the prior language
in Bill 69 that was not well defined with the
payment provisions.
* The owner shall also make payment of the
proper invoice within 28 days of receipt, with
the proviso that a notice of non-payment
needs to be provided by the owner to the
contractor within 14 days detailing reasons
for non-payment. The challenge for owners will be meeting the limited timelines
for the review and notice, as they include a


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Table of Contents for the Digital Edition of The Generals - Fall/Winter 2017

Chairman’s Message
President’s Message
Incoming Chair’s Message
Government Relations Report
Events
The Construction Lien Act Discussion
The New Construction Act: Coming to a Jobsite Near You
Modernizing the Construction Lien Act – Welcome Changes
Bill 142, Construction Lien Act Amendment – A Construction Owner’s Perspective
Bill 142 – Worth the Wait
Legend: Pertinent Acronyms
The Effect of Adjudication on the Construction and Legal Industries
The Proposed New Construction Act: A Dose of Realism
Employer Did Not Discriminate Against Cocaine Addict Who was Dismissed for Cause
COR Safety Certification: It’s Not just for Large Generals
Recent Decision Confirms that Notices of Claims Do Not have a “Standard Form”
Maple Reinders: After 50 Years, their Passion for Building Keeps Growing … and Growing
OGCA Golf Tournament
Associate Partners Program
Index to Advertisers
The Generals - Fall/Winter 2017 - Intro
The Generals - Fall/Winter 2017 - cover1
The Generals - Fall/Winter 2017 - cover2
The Generals - Fall/Winter 2017 - 3
The Generals - Fall/Winter 2017 - 4
The Generals - Fall/Winter 2017 - 5
The Generals - Fall/Winter 2017 - 6
The Generals - Fall/Winter 2017 - Chairman’s Message
The Generals - Fall/Winter 2017 - 8
The Generals - Fall/Winter 2017 - President’s Message
The Generals - Fall/Winter 2017 - 10
The Generals - Fall/Winter 2017 - Incoming Chair’s Message
The Generals - Fall/Winter 2017 - 12
The Generals - Fall/Winter 2017 - Government Relations Report
The Generals - Fall/Winter 2017 - 14
The Generals - Fall/Winter 2017 - Events
The Generals - Fall/Winter 2017 - The Construction Lien Act Discussion
The Generals - Fall/Winter 2017 - 17
The Generals - Fall/Winter 2017 - 18
The Generals - Fall/Winter 2017 - The New Construction Act: Coming to a Jobsite Near You
The Generals - Fall/Winter 2017 - Modernizing the Construction Lien Act – Welcome Changes
The Generals - Fall/Winter 2017 - 21
The Generals - Fall/Winter 2017 - 22
The Generals - Fall/Winter 2017 - 23
The Generals - Fall/Winter 2017 - Bill 142, Construction Lien Act Amendment – A Construction Owner’s Perspective
The Generals - Fall/Winter 2017 - 25
The Generals - Fall/Winter 2017 - Bill 142 – Worth the Wait
The Generals - Fall/Winter 2017 - 27
The Generals - Fall/Winter 2017 - 28
The Generals - Fall/Winter 2017 - Legend: Pertinent Acronyms
The Generals - Fall/Winter 2017 - The Effect of Adjudication on the Construction and Legal Industries
The Generals - Fall/Winter 2017 - 31
The Generals - Fall/Winter 2017 - The Proposed New Construction Act: A Dose of Realism
The Generals - Fall/Winter 2017 - 33
The Generals - Fall/Winter 2017 - Employer Did Not Discriminate Against Cocaine Addict Who was Dismissed for Cause
The Generals - Fall/Winter 2017 - 35
The Generals - Fall/Winter 2017 - 36
The Generals - Fall/Winter 2017 - COR Safety Certification: It’s Not just for Large Generals
The Generals - Fall/Winter 2017 - 38
The Generals - Fall/Winter 2017 - 39
The Generals - Fall/Winter 2017 - Recent Decision Confirms that Notices of Claims Do Not have a “Standard Form”
The Generals - Fall/Winter 2017 - 41
The Generals - Fall/Winter 2017 - Maple Reinders: After 50 Years, their Passion for Building Keeps Growing … and Growing
The Generals - Fall/Winter 2017 - 43
The Generals - Fall/Winter 2017 - 44
The Generals - Fall/Winter 2017 - 45
The Generals - Fall/Winter 2017 - OGCA Golf Tournament
The Generals - Fall/Winter 2017 - 47
The Generals - Fall/Winter 2017 - Associate Partners Program
The Generals - Fall/Winter 2017 - 49
The Generals - Fall/Winter 2017 - 50
The Generals - Fall/Winter 2017 - 51
The Generals - Fall/Winter 2017 - 52
The Generals - Fall/Winter 2017 - 53
The Generals - Fall/Winter 2017 - Index to Advertisers
The Generals - Fall/Winter 2017 - cover3
The Generals - Fall/Winter 2017 - cover4
The Generals - Fall/Winter 2017 - outsert1
The Generals - Fall/Winter 2017 - outsert2
The Generals - Fall/Winter 2017 - outsert3
The Generals - Fall/Winter 2017 - outsert4
The Generals - Fall/Winter 2017 - outsert5
The Generals - Fall/Winter 2017 - outsert6
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