Ontario’s Construction Lien Act Review:
What to expect when it is released
Canadian Design and Construction Report staff writer
Months after Bruce Reynolds and Sharon Vogel submit-
ted their comprehensive report on recommendations for
changes to Ontario’s Construction Lien Act, there is still si-
lence from the provincial government about the review’s
contents, and how and when the recommendations will be
implemented. The Toronto Construction Association (TCA) announced
Reynolds would be the guest speaker at its May 11 Mem-
bers’ Day, expecting the report to be released by then, but
Reynolds, billed as the guest speaker, couldn’t show up be-
cause the report had not been made public.

“We were optimistic” until the last minute that the report
would be released and Reynolds would attend, John Mol-
lenhauer, the TCA’s president and CEO, told a packed meet-
ing room where the audience was waiting to hear from
Reynolds. “The report is 299 pages long, has dozens of
pages of appendices, with 14 chapters and 100 recommen-
dations. They (government officials) have to assimilate the
data, brief the ministers and then release it. It’s probably
two or three weeks to release publicly.”
However, while the report could not be public, panelists
at the TCA gathering sought to explain what would likely
be in it in a forum moderated by construction lawyer Glen
Ackerley, a partner at WierFoulds LLP, and one of 13 mem-
bers of an advisory group which he said “Bruce and Sharon
bounced ideas off.”
Ackerley said the existing CLA is 33 years old. “At that
point I was typing essays on a Commodore 64,” he said.

“Technology has moved forward, but the Lien Act has not.

Projects are much more complicated, relationships have
grown much more complex, project delivery models like
the AFP (alternative financing and procurement) model
came in since the act was passed. There are situations
where the act has not kept up.”
He said there have been very few changes with the leg-
islation in the more than three decades since its introduc-
tion. The challenge in making changes – and a partial reason
for the long delay in dealing with the act – relate to the var-
ious vested interests and perspectives, each with their own
perspective, coupled with the fact that the CLA could not
be considered a central political priority.

These conditions changed when trade contractors
pushed forward with their objectives to introduce prompt
payment legislation, which resulted in a private members’
bill (Bill 69) that went through committee but was stalled
after a public outcry by key stakeholders including owners
who believed their needs were not considered in the act.

The solution: Reynolds and Vogel were contracted to
develop a solution, which could involve revisions to the
CLA and/or some form of prompt payment legislation. They
8 – September 2016 — The Canadian Design and Construction Report
would “do what is right in the interests of the industry,”
Ackerley said. “They could recommend something every-
one wouldn’t agree to – everything is on the table.”
Panelist Gerald Boyle, vice president of Revay and As-
sociates Ltd., said he understands the review considered
adjudication as well as mediation, arbitration and dispute
resolution boards.

The concept of a “quick and dirty” adjudication process,
which has been applied in other jurisdictions, sees a
mandatory decision set quickly by an adjudicator “selected
by the two parties” and the decision can only be appealed
to the courts after the project is completed.

In effect, he said, this process gives some advantage to
the contractor or subtrade making the claim, as work can
be done privately preparing the arguments, and the other
side (perhaps the owner or general contractor) won’t have
much time to file a response. However, the “pay now, argue
later” approach allows the project to move forward and for
matters to be sorted out without excessive delay. Very few
cases actually go to litigation afterwards, he says.

Yonni Fushman, vice president and general deputy coun-
sel, Aecon Group Inc., said the Bill 69 prompt payment
“was like a nuclear missile approach rather than a fly swat-
ter.” He said the industry is incredibly complex. Can the
same legislation apply to a $1,000 renovation and a multi-
billion Public/Private/Partnership (P3) project?
“Everyone has issues with cash flow,” he said. However,
there can be many different reasons for payment delays.

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