The Generals - Fall/Winter 2017 - 32

FEATURE

The Proposed New
Construction Act:

A Dose of Realism
By Geza R. Banfai, Counsel, McMillan LLP

T

he passage of Bill 142, The Construction
Lien Amendment Act, 2017, appears
imminent and the industry is astir with
a mixture of anticipation and anxiety.
And small wonder. It is not without significance that one of the changes being proposed
is an amendment to the title of the Construction
Lien Act itself, now proposed to be called simply
the "Construction Act".
Lien reform itself has been a long time coming, but combined with a prompt payment
regime and an adjudication system, we have in
one statute what is probably the most sweeping set of legal changes the industry has ever
experienced. To some, this is the dawn of a bright
new era, while to others it is an intimidating
and stressful prospect. Still others, we lawyers
mostly, are working overtime figuring out ways
to work this new system to advantage.
It's all very exciting, but amid the hoopla
it's worthwhile to pause and reflect upon
some things:

1. It's an Evolution,
Not a Revolution.
I liken the construction industry to a supertanker
at sea. Such a vessel does not turn on a dime;
32

the rudder may be hard over, but it takes time
and miles. An immense ship like this does not so
much turn onto its new course as it evolves to it.
The goals of Bill 142 include treating the
payment of construction accounts and resolving disputes over them with the same level of
urgency as contract performance itself. To an
industry long accustomed to both extended
payments and a system where resolution of payment disputes is a leisurely activity measured
in years, this represents significant behavioral
and cultural change.
We should not expect such change to happen
suddenly. There is a lot of inertia to overcome
before the "rudder" of Bill 142 takes effect.

2. The Act Will Not Be Perfect.
As one who has played some small role in this
process, I can report that many committed, wellmeaning and eminently capable people from all
sectors of the industry have worked very hard in
getting the Bill to this point, and will continue
to do so until passage.
I can also report in advance that if our task was
to create would-be perfect law, we will have failed.
There are a number of reasons why legislation
can never achieve perfection. There are deep

View this issue online at www.naylornetwork.com/oga-nxt

limitations within language itself, the ability to
capture complicated and nuanced intention
by words on a page. There will be unintended
consequences, and though much effort has
gone into anticipating everything, an imaginative and resourceful industry will surprise us all,
guaranteed. Finally, there is the interpretation
problem-the simple fact that it is people who
give meaning to the words in the statute, and
different people will inevitably give different
meaning to the same words.
There is no avoiding any of this. Yes, our
collective understanding of the new rules will
become clearer with the passage of time and
precedent, and as we go the law may even be
amended to correct anomalies. But perfection-
however that might look to you-will forever be
out of reach.

3. There are No Magic
Bullets. Ever.
There was a sense amid the process of getting
to Bill 142 that "If we could only craft a law, the
right law, all of our problems would be solved
once and for all!"
This is a delusion of course, albeit a delusion
with some uses. More pernicious, I think, is that


http://www.naylornetwork.com/oga-nxt

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
https://www.nxtbook.com/naylor/OGAB/OGAB0218
https://www.nxtbook.com/naylor/OGAB/OGAB0118
https://www.nxtbook.com/naylor/OGAB/OGAB0217
https://www.nxtbook.com/naylor/OGAB/OGAB0117
https://www.nxtbook.com/naylor/OGAB/OGAB0216
https://www.nxtbook.com/naylor/OGAB/OGAB0116
https://www.nxtbook.com/naylor/OGAB/OGAB0215
https://www.nxtbook.com/naylor/OGAB/OGAB0115
https://www.nxtbook.com/naylor/OGAB/OGAB0214
https://www.nxtbook.com/naylor/OGAB/OGAB0114
https://www.nxtbook.com/naylor/OGAB/OGAB0213
https://www.nxtbook.com/naylor/OGAB/OGAB0113
https://www.nxtbook.com/nxtbooks/naylor/OGAB0212
https://www.nxtbook.com/nxtbooks/naylor/OGAB0112
https://www.nxtbook.com/nxtbooks/naylor/OGAB0211
https://www.nxtbook.com/nxtbooks/naylor/OGAB0111
https://www.nxtbook.com/nxtbooks/naylor/OGAB0210
https://www.nxtbook.com/nxtbooks/naylor/OGAB0110
https://www.nxtbook.com/nxtbooks/naylor/OGAB0209
https://www.nxtbookmedia.com