The review of Ontario’s Construction Act announced a few weeks ago is big news for much of the industry, and although it’s still early days in the process, stakeholders are optimistic it will bring positive change.
At the Toronto Construction Association’s annual general meeting Feb. 28 in Richmond Hill, Attorney General Doug Downey announced a review of the Construction Act will be undertaken by construction lawyer Duncan Glaholt, who was named independent reviewer and adviser to lead the process.
“This is the five-year-plus review that was recommended by (Bruce) Reynolds and (Sharon) Vogel in their original report (Striking the Balance),” said Glaholt in an email to the Daily Commercial News. “The province is following through on that recommendation.”
The review will take place in two stages. Phase one will prioritize possible improvements to the Construction Act and phase two will include consultation with stakeholders on any proposed amendments. Both phases are anticipated to be completed by the fall of 2024.
“The first phase, underway now, is mostly planning and organization, reviewing potential areas for amendments, including suggestions from stakeholders,” Glaholt said. “To be clear, any stakeholder/public consultation will follow the government’s receipt and review of my advice. My essential approach is if it isn’t broken, don’t fix it. But there are areas where we can make this very good statute even better.”
Stakeholders provide recommendations
Last summer Glenn Ackerley of WeirFoulds LLP made 86 recommendations to fix elements in the act that are not working as intended on behalf of the Council of Ontario Construction Associations (COCA) and the Construction and Design Alliance of Ontario.
Many of them focus on adding definitions of certain terms and fixing the language in parts of the act.
His suggestions centre around the extension of lien periods for adjudication; annual and phased release of holdback; construction trusts; promptness of payment; surety bonds; liens and landlords; and notice of termination, to name a few.
“It’s really more of a question of what is really achievable, what’s doable. It may be that some things get addressed in priority to others because there are some things that desperately need fixing and other things that can be fixed at some point,” he said.
“My concern has always been that if you fix some of the things, the unfixed things are still there, they don’t go away, they remain problems.
“It would be better to fix as much as possible all at once. This is the one shot to try and get as much right as possible.”
The recommendations he made in his submission were focused on fixing existing problems, not going off in new directions, he added.
“A number of years ago when the changes were made to the legislation, that was based on a very long comprehensive review and 100 recommendations at that point for introducing prompt payment and adjudication. That’s all been done,” Ackerley said. “The problem I was focused on is what are the things that need to be done to make those recommendations that were implemented better? Or where there were conflicts created in the legislation, fix more technical problems that arose as a result of the introduction of these things.”
Review should focus on clarifying ambiguity
Ontario General Contractors Association president Giovanni Cautillo said elements in the act need to be clarified.
“We as an industry tabled a bunch of recommendations and suggestions to make the act clearer and to remove the ambiguity from the act,” Cautillo told the Daily Commercial News.
“This is a dense document with layers upon layers. Hopefully they’ll take said recommendations, move them ahead and make it clear for everyone so that we can actually do the process without as much ambiguity as we have been.
“A lot of it, believe it or not, is just clarifying the process,” he added. “It’s not any one thing. It’s like death by a thousand cuts. When you have so many little things and they’re all ambiguous or unclear or left up to interpretation that creates problems between the parties. Having things clarified for all parties to be on the same page is a great position to be in because you can avoid issues before they actually transpire.”
Ian Cunningham, president of the COCA, said the work done by Reynolds and Vogel and the panel of experts who developed the Striking the Balance report to update and modernize the lien process “got us 95 per cent of the way there.
“However, through the application of the Construction Act, a number of unintended bugs and glitches have become apparent that stand in the way of the act working in the way it was intended,” Cunningham said.
“Over the last several years COCA has been lobbying the government to address the shortcomings in the Construction Act, to smooth out the unintended ‘bumps in the road,’ to make it work in the way Striking the Balance intended.”
COCA was pleased with the appointment of Glaholt, he added.
“Once the Glaholt review is completed and its recommendations enacted, the Construction Act will work as intended. Construction disputes will be resolved efficiently and Ontario will be better positioned to build the homes and infrastructure we need for a prosperous future.”
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