Authors
Ian T. D. Thomson
On November 6, 2024, the Building Ontario for You Act (Bill 216) received royal assent. This omnibus legislation makes several key changes to the Construction Act (the Act), including implementing a mandatory annual release of holdback regime, broadening the availability of adjudication relating to contractual disputes and updating core definitions, including to clarify what constitutes a “proper invoice”. While many of the changes have yet to come into effect, industry participants should understand their new rights and obligations in relation to construction contracts.
Bill 216 amends section 26 of the Act, requiring annual release of the holdback. Under the new provision, owners are required to publish notice of an annual release of holdback within 14 days after each anniversary of the day on which the contract was entered into, specifying the amount and intended payment date. The owner must pay the accrued holdback to the anniversary date within 14 days after the expiry of the lien period (which is the 60th day following the publication of the annual notice) unless a lien has been preserved or perfected and has not expired or been discharged or vacated. The requirement of annual holdback release is strengthened by the fact that former section 27.1 (which permitted non-payment in specific circumstances) has been repealed and not replaced. This regime will apply to all levels of the construction pyramid (i.e. owners to contractors, contractors to subcontractors, etc.).
On October 1, 2019, the Act brought into effect interim adjudication of construction disputes.
The amendments expand access to statutory adjudication in a number of ways:
The outcome of these changes will likely be greater use of interim adjudication. Industry participants ought to consider their risk exposure under construction contracts in relation to this broadened scope.
Bill 216 introduces a deeming provision where an invoice that fails to meet the criteria of a “proper invoice” will still be deemed a “proper invoice”. This will occur if an owner does not notify the contractor in writing of the invoice’s deficiencies and what is needed to resolve the deficiencies within seven days after receiving the invoice. Thus, owners must be more diligent and expedient in reviewing their invoices.
Most of the amendments will take effect after proclamation by the Lieutenant Governor. However, like previous amendments, some of the larger changes will be transitioned into the Act to allow industry to adapt accordingly. Section 87.4 of the Act outlines transition measures that prescribe how some of the changes will proceed.
For contracts entered into before the provision’s effect, the requirement to release holdback annually begins on the second anniversary of the date the contract was entered into which follows the date on which the amendments take effect. At this anniversary, the requirement to make holdback payment will include all holdback accrued before that date.
By way of example, assume (hypothetically) that the holdback amendments come into force on July 1, 2025. For a contract entered into on November 5, 2024 (prior to the amendments), the first mandatory release of holdback would happen two contract anniversaries later, on November 5, 2026. At this time, the accrued holdback released would date back to November 5, 2024.
The amendments aim to improve the holdback regime and timely payment, enhance statutory adjudication, and add greater certainty to the construction sector. Industry participants should prepare for this new regime in their existing and future contracts. The requirement to release holdback annually will alter owners’ financing requirements. The expanded scope for adjudication will increase the importance of dispute readiness, and will change contract dynamics by permitting end-of-contract change order disputes to be addressed through the rough justice of interim adjudication.
To discuss these issues, please contact the author(s).
This publication is a general discussion of certain legal and related developments and should not be relied upon as legal advice. If you require legal advice, we would be pleased to discuss the issues in this publication with you, in the context of your particular circumstances.
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