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Confusion Surrounding the Transition Provisions of Ontario’s Construction Act: Should they apply on a “Single Improvement” Basis?

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From Kennaley Construction Law

This Article is a continuation of our previous Article on gaps, confusion and inconsistencies in Ontario’s Construction Act. Here, we focus on the transition provisions which apply to the Act’s changes effective July 1, 2018 and October 1, 2019. In each circumstance, whether or not the new provisions apply will depend on the interpretation of section 87.3 of the Act, which ties transition to the definition of “improvement”. This has created a fair bit of confusion (as was recently made clear at a meeting of the Construction and Infrastructure Law Section of the Ontario Bar Association).

It is unclear why the drafters of the Construction Act tied s.87.3 to the definition of “improvement”. In their Report Striking a Balance, for example, Bruce Reynolds and Sharon Vogel did not recommend this. Regardless, doing so was not necessary: when the Mechanic’s Lien Act became the Construction Lien Act in 1982, the new provisions simply applied to all contracts entered into after a specified date, without referencing the “improvement”.

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Construction Career Day

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Local High School Students Tour Construction Sites

In the most recent survey of BCA members, the number one issue was hiring skilled workers.

Many of our members are small to medium enterprises that depend heavily on securing local, skilled trades.

We have created an annual Construction Career Day to introduce select high school students to the world of construction.

We tell them the good news about construction. It is a career, not a job. It is not about physical strength, but about brains. It is not about who has the biggest truck or who drinks the most beer. It is about skill, it is about commitment, it is about solving problems, it is about working as part of a team, it is about delivering what you promise, it is about being educated, about helping people, about being a professional, being proud of what you do.

CTV News Coverage

Daily Commercial News Article 1

Daily Commercial News Article 2

I would like to thank the Skilled Trades Committee, the members that supported our October 7th site tours and the many volunteers that contributed to the success of our day!

3M Canada – Nicole McArthur
Advanced Roof Solutions – Linda Ralston
Arnott Construction – Todd Arnott
Bertram Construction – John Gibson
Brian’s Little Electric – Brian Westermann
Dufferin Construction – Gerald Sullivan, K.D. Singh, Mark Stapf
Dutch Masters Design and Construction Services – Gary van Bolderen
Gerrits Engineering – Taylorr Lewis
Lafarge Canada Inc – Mark Lambie
Powell (RH) Contracting – Chantal Seguin
Sunbelt Rentals – Scott Everton

and our partners in promotion:

Ontario Construction Career Alliance – Nicole Stoikos
Ontario Youth Apprenticeship Program
Simcoe Muskoka Catholic District School Board – Steacy Hinton
Simcoe County District School Board – Elaine McLachlin

Grand Opening of Lucy’s Place

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The Grand Opening of Lucy’s Place!

Watch the Opening Ceremony

The grand opening of the converted Barr’s Motel took place on Thursday, October 10th. Dignitaries from across our region commended the generosity and hard work of our members!

The first tenants have moved in to Lucy’s Place (formerly the Barr’s Motel on Essa Rd. in Barrie) and now have somewhere they can call HOME!

Thank you to the BCA members listed below that opened up their hearts and embraced BCA’s community spirit to convert an under-used motel into hopeful housing for those suffering from chronic homelessness in our community.

Aube Masonry

Barrie Trim & Mouldings Inc.

Brian’s Little Electric

Duivenvoorden Haulage

Gerrits Engineering

MAK Mechanical

Positano Paving

Rutherford Contracting

Stephenson’s Rental Services

Sunbelt Rentals

Tatham Engineering

The Sarjeant Co.

United Lumber/Home Hardware

 

 

 

 

RIDE FOR CANCER 2019

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Despite the rainy weather, we had a record breaking year for donations at the Rider for Cancer!  A total of $15, 311.00 was raised for the local unit of the Canadian Cancer Society.

Thank you to committee members Scott Ward – Accu-Temp Systems, Dave Mayne – Dave’ll Do It, Bill Fligg – Spyderwebs.ca, Paul Cormier – Sunbelt Rentals, Scott Everton – Sunbelt Rentals, Mike Kubica – The Sarjeant Co and John Cuppage.

And thank you to all of the sponsors and riders for your contributions to the Rowdy Ride for Cancer, we couldn’t have done it without you!

Visit our Photo Gallery page to view all of the day’s photos.

2019 Sponsors

Barrie Regional Glass
Calow Benefit Partners
Chalmers Construction
Duivenvoorden Haulage Ltd.
Egress Systems
Eisses Brothers Excavating
Georgian Commercial Fleet Centre
Hardship Acres Landscaping
Iconix Waterworks
John Eek & Son Ltd.
MAK Mechanical
Midhurst Roofing
North Rock Group
North Steel
OFS Fire Prevention
Patene Building Supplies
Plumbtech Plumbing
Positano Paving
Rutherford Contracting
Sarjeant Hub International
SDS – Safety Design Strategies
Vipond Inc.

Ontario Cutting Red Tape to Support Jobs and Growth in the Construction Industry

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News Release

Ontario Cutting Red Tape to Support Jobs and Growth in the Construction Industry
July 18, 2019
Changes Will Help Workers and Businesses Resolve Disputes Faster and Get Paid on Time

TORONTO — Today, Attorney General Doug Downey announced an essential next step to the full implementation of a first-in-Canada prompt payment regime to support jobs and growth in the construction industry. This regime will help cut through red tape, help create and protect jobs and attract investment to the province.
The implementation of these changes will prevent payment disputes from delaying work on construction projects, speed up the payment process and reduce time and money spent on litigation for businesses.
Following a fair and open selection process, ADR Chambers was selected as the successful candidate to serve as the Authorized Nominating Authority. This new body will oversee the adjudication process for construction disputes, including the training and qualification of adjudicators.
This adjudication system brings into force a new process that will give people and businesses a cost-effective and efficient alternative to settling payment disputes in court. Starting October 1, 2019, subject to applicable transition rules, parties to construction contracts and subcontracts will be able to receive a binding decision from an experienced construction adjudicator in approximately six weeks, a process that could take months or even years in the court system.
“Ontario is open for business and open for jobs, and our government is implementing industry-leading changes to the construction sector as part of our plan to restore the province as an economic powerhouse,” said Attorney General Downey. “The new construction adjudication system, as overseen by the Authorized Nominating Authority, will cut through the red tape that slows down the dispute resolution process – getting projects back on track and ensuring workers are paid on time.”

QUICK FACTS

• The Construction Act is intended to regulate how payments are made, to help ensure that workers who have provided services or materials during a construction project are paid for their work.
• The Authorized Nominating Authority will be self-funded and operate independently of government.
• ADR Chambers has provided dispute resolution services across Canada for over 20 years.
• Ontario’s construction industry employs more than 400,000 people and accounts for nearly seven per cent of the province’s GDP.

ADDITIONAL RESOURCES

Learn more about the changes to the Construction Act

QUOTES

“ADR Chambers is honoured to have been selected as the Nominating Authority for Ontario’s prompt payment framework. We look forward to drawing on our expertise and experience as we work with the Ministry of the Attorney General and the construction community to realize full implementation of this exciting endeavour.”
— Allan Stitt, President, ADR Chambers

“The appointment of the Authorized Nominating Authority is an important step in the creation of the dispute resolution system that is scheduled to be in place on October 1, 2019. We applaud our government for making this announcement and we look forward to working with the Ministry of the Attorney General and the ANA going forward.”
— Ian Cunningham, President, Council of Ontario Construction Associations

“OGCA welcomes the appointment of the ANA as the vital last step in implementing the new Construction Act. It will oversee and implement mandatory adjudication of construction disputes for the prompt payment requirements that will be in effect this October. The Construction Act is the biggest change to construction law in a generation and we require the ANA to provide quality adjudication services to ensure a smooth transition.”
— Clive Thurston, President, Ontario General Contractors Association

“Prompt Payment Ontario would like to thank the entire Ford Government for its commitment to delivering prompt payment in Ontario. The announcement of the Adjudication Nominating Authority has been highly anticipated and we are pleased that this crucial milestone has been reached. Prompt payment and the new adjudication regime will be a monumental change that will create a more positive and fair business environment in Ontario’s construction industry. PPO looks forward to the October 1st when prompt payment comes into effect.”
— Sandra Skivsky, Spokesperson, Prompt Payment Ontario

CONTACTS

Jenessa Crognali
Minister’s Office
Jenessa.Crognali@ontario.ca
Brian Gray
Communications Branch
416-326-2210
MAG-Media@ontario.ca
Ministry of the Attorney General
http://www.ontario.ca/mag

Skills Pass and the Ministry of Labour are Live

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On March 4th, 2019 the Ministry of Labour has officially launched with SkillsPass for Working at Heights (WAH) and Joint Health and Safety Committee (JHSC) Certification training records. The database is called the Certification Management System (CMS) and it is powered by SkillsPass. The database is secure, meeting Ontario Government strict standards for privacy and security.

As a result of these changes, the Ministry of Labour is no longer printing and mailing CPO training cards as they now will be delivered electronically using SkillsPass.

Watch the video here

For more details on Skills Pass, click here

Can a Construction Trust be Trusted?

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The Guarantee is pleased to announce a landmark decision by the Ontario Court of Appeal affecting the entire construction industry.

On January 14, 2019, the Ontario Court of Appeal released a unanimous 5-panel decision in the case of The Guarantee Company of North America v. Royal Bank of Canada, 2019 ONCA 9 providing much needed clarity on the interaction between the trust provisions of the Construction Lien Act in Ontario and the Bankruptcy and Insolvency Act. This decision confirms that the statutory trust created by the Construction Lien Act in Ontario is not in conflict with the provisions of the Bankruptcy and Insolvency Act and remains effective through insolvency protecting those trust funds for the benefit of trust claimants and not for distribution to creditors.

Across Canada, the entire construction industry is focusing on implementing prompt payment and adjudication changes to ensure subcontractors and suppliers down the construction pyramid are paid, and paid promptly, for work performed. The intent of the new legislation is a major step forward, but by itself does not address how subcontractors and suppliers are paid when a contractor becomes insolvent. Historically, if a contractor goes bankrupt, subcontractors and suppliers have found themselves in a dispute with other creditors claiming entitlement to statutory trust funds. These disputes can be costly to argue and take a considerable amount of time to resolve.      

“This decision is a significant win for subcontractors and suppliers that have trust rights and for the surety industry.  It is the result of a tremendous amount of effort and energy, and my team and I are pleased to have led such an important initiative,” says Tara Wishart, VP of Claims, Toronto Branch. “This ruling reinforces our IONA decision in providing the legal clarity needed to protect construction trust funds from being collected as property under the BIA and ending up in the hands of secured creditors.”

For The Guarantee Company of North America, this is the second decision that supports the argument that trust funds set out under provincial lien legislation should flow to subcontractors and suppliers.  The previous decision was set out of the Alberta Court of Appeal, in Iona Contractors Ltd. v. The Guarantee Company of North America, 2015 ABCA 240 (leave to appeal to the Supreme Court of Canada denied).

Matthew B. Lerner and Scott M. J. Rollwagen of Lenczner Slaght Royce Smith Griffin LLP represented the Guarantee at the Appeal hearing.
Please note that it is unclear, at this time whether The Royal Bank of Canada intends to apply for leave to the Supreme Court of Canada.

To view the full ruling, please visit: http://www.ontariocourts.ca/decisions/2019/2019ONCA0009.htmm.