Amendments to Ontario Construction Act creates challenges, excitement for Barrie law firm

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Dooley Lucenti offices

By Sarah Jean Maher

Special toย  Ontario Construction Association News

Dooley Lucenti LLP has already established itself as one of Ontarioโ€™s most prominent voices in construction law. For years they have provided legal insight, seminars, and classes to big organizations including the Barrie Construction Association, the Orillia and District Construction Association, and Georgian College.

Amendments to the Ontario Construction Act taking effect Oct. 1, 2019 have provided them with what partner Scott Fairley has described as an โ€œexciting challenge.โ€

โ€œFor years weโ€™ve been talking about things weโ€™ve felt very confident about,โ€ said Fairley. โ€œThere are a lot more unknowns right now. Itโ€™s interesting to be doing a seminar about legislation that has not yet fully come into force, because people want to know in fairly absolute terms: what does this mean?โ€

The Dooley Lucenti team of lawyers, including Eric Gionet, Scott Fairley and Andrew Wood, provides legal advice to a plethora of different groups including owners, general contractors, engineers, mortgage lenders, and architects. Because these new changes affect prompt payment and adjudication processes, as well as amendments related to liens against municipalities, there has been increased interest in providing this advice to owners.

โ€œThere will now be a heavier onus for the steps owners have to take upon receipt of an invoice, and weโ€™re getting more interest from municipalities and owners, who are asking about this new legislation,โ€ Fairley explained.

โ€œThere is a more active role to be played by the owner if theyโ€™re not going to be paying out holdback, so weโ€™re definitely getting more interest from owners.โ€

The Barrie Construction Association is where Dooley Lucenti gives the majority of their seminars, as itโ€™s a good source for networking with its large volume of local members. ย In addition, the City of Barrie has become especially interested in seeking advice regarding the amendments to the act and its impact on owners and municipalities.

โ€œThe most interest in the Construction Lien Act came from the general contractor and subtrades level, as it was more focused on rights and obligations with regards to getting paid, correct timing for registering liens, and related matters,โ€ said Fairley.

But, as mentioned, municipalities and owners will be significantly affected by the upcoming changes.

Fairley and his partner, Eric Gionet handle most of the construction-related work at the firm along with Andrew Wood.ย  Mr. Gionet was involved in the consultation process though which the new legislation was drafted and is being implemented.ย  Fairley mentioned providing advice on the new changes may be difficult at first, as most of amendments havenโ€™t been put into force yet, or have not yet been interpreted by the courts.

โ€œI suppose one of the most interesting things with the new Construction Act is that it has sort of reset everybody to zero as far as knowledge base goes. There is no case law and itโ€™s certainly interesting to give the seminars when we donโ€™t have the depth of either experience or knowledge with the changes.โ€

Back when the Prompt Payment Act was proposed, the team was giving seminars to the BCA and other organizations about this upcoming regime. Many of these concepts were carried forward into the new Ontario Construction Act.

โ€œIโ€™m glad to see that itโ€™s actually turned into something,โ€ Fairley said.

The firm has not seen too many disputes relating to projects to which the new act applies, since amendments initially came into force last July. Contracts either had to be entered into post-July 1 of last year, or the procurement process had to be started after that time.

โ€œThe disputes and litigation tend to happen towards the end of projects, or at least when theyโ€™re essentially in the ground, so itโ€™s only now that weโ€™re starting to see projects reflecting the new act,โ€ explained Fairley.

For the most part, their current projects havenโ€™t been too affected by the new act, especially since there havenโ€™t been too many changes to the procedures, and Fairley thinks it will be awhile before their projects are heavily affected.

โ€œWeโ€™re not likely to see those changes come across our desk for quite awhile, but itโ€™s interesting to have to put your mind to some fairly fundamental changes in how we provide the advice on projects,โ€ said Fairley.

โ€œThere is no case law to interpret a lot of these things yet, so a lot of the questions weโ€™re answering with other questions or with a โ€˜wait and seeโ€™.โ€

โ€œConsidering the significant changes that are coming with respect to prompt payment and adjudication, we are now in the process of presenting seminars to the industry and also taking legal education seminars ourselves to ensure that we are as knowledgeable as possible to hit the ground running when the Construction Act is fully in force,โ€ he said.

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