Missed Providing Notice After Filing an Adjudication’s Determination
Missed Providing Notice After Filing an Adjudication’s Determination? It’s Enforceable Key Takeaway Section 13.20(3) of the Construction Act (the “Act”) requires a party filing an adjudicator’s determination to notify the other party of filing within 10 days. However, a recent decision of the Divisional Court has found that the failure to provide 10 days notice […]
Procedural Fairness and Adjudication Under Ontario’s Construction Act
Procedural Fairness and Adjudication Under Ontario’s Construction Act Key Takeaway An adjudicator that fails to allow parties to make submissions regarding a key and decisive issue will likely result in that determination being quashed for violating the fundamental principle of procedural fairness. The Background and Decision Pursuant to Section 6.5 of Ontario’s Construction Act, subject […]
Prompt payment on P3 projects: a gap in the Construction Act
Prompt payment on P3 projects: a gap in the Construction Act Ontario’s prompt payment system under the Construction Act (the “Act”) has changed the way that parties to construction projects understand their payment obligations. But when it comes to public-private partnership (“P3”) projects (also known as alternative financing and procurement or AFP projects), the language […]
Avoiding Discovery Obligation Pitfalls
Avoiding Discovery Obligation Pitfalls Key Takeaways It’s important to comply with your production and discovery obligations when making decisions to exclude certain documents during the discovery process. Otherwise, your client may find themselves in a predicament before trial where leave from the court is required to rely on a document. Further, if the court allows […]
Joining Ontario Breach of Trust and Lien Claims in the Same Action – An Evolving Landscape
Joining Ontario Breach of Trust and Lien Claims in the Same Action – An Evolving Landscape Introduction It was undisputed law under the Construction Lien Act (the “Old Lien Act”) that a trust claim could not be joined with a lien claim. After all, there was an explicit prohibition in section 50(2) of the Old […]
Priorities for Liens and Arrears of Prior Mortgages
Priorities for Liens and Arrears of Prior Mortgages Key Takeaway A recent decision of the Ontario Divisional Court clarifies that if a mortgage has priority over a lien, then so too will all arrears in interest, fees, charges, and expenses have priority over the lien, even if the interest, fees, charges, and expenses arise after […]
Public-Private Partnerships and the Allocation of Risk
Public-Private Partnerships and the Allocation of Risk The allocation of risk in public-private partnership agreements is carefully balanced. That balance, however, can be easily disrupted in the wake of a worldwide pandemic. In a recent decision, Crosslinx v Ontario Infrastructure1, the Court tipped the scale in favour of the private sector—allocating pandemic risk to the […]
The Transition Provision – Know Which Act Applies
The Transition Provision – Know Which Act Applies Knowing whether the old Construction Lien Act (“old Act”) or the new Construction Act (“new Act”) applies is critical in determining the expiry of a lien. Under the old Act, the lien had to be preserved within 45 days of the applicable trigger date. Under the new […]