Construct Legal is excited to announce our webinar Jack of All Trades: Are Owners Responsible for Safety for Everyone and Everything on a Project? on Friday, January 19, 2024 at 10:00 AM EST.

Faren Bogach (LLB’07) is founder and lawyer at Construct Legal in Toronto. She started as a commercial litigator before finding construction and infrastructure law. “I founded Construct Legal to focus on client outcomes instead of the billable hour,” she says.

Key Takeaway

An owner may have the responsibilities (and corresponding liabilities in the event of an accident) of an “employer” under Ontario’s Occupational Health and Safety Act (“OHSA”), even when the owner has retained a contractor to perform the actual work. This can be true even where the owner does not have direct control of the work, but this element of control may be relevant to the owner’s “due diligence” to argue that it took all reasonable steps in the circumstances.

In the recent decision of On Point Ltd. v Conseil des Écoles Catholiques du Centre Est et al., the Ontario Superior Court of Justice held that portable school classrooms (or “portables”) can constitute improvements within the meaning of the Construction Act.

As we approach our second anniversary, we are thankful that you are part of our firm’s foundation.

If you are a party in a construction dispute and your contract includes an arbitration clause, the Ontario Superior Court of Justice decision of Bombino v Serendipity Homes (“Bombino”) suggests that you should not wait to enforce the arbitration clause.1

The case law on construction dispute interim adjudications in Ontario continues to develop. In the recent case of Arad Incorporated v Rejali et al (“Arad”),¹ the court provided helpful guidance to the construction and legal industries about how an adjudicator’s determination may be treated by the court as evidence.

Eating lunch at your desk on June 21?

Faren Bogach has been nominated for Canadian Lawyers Top 25 most influential lawyers of 2023 in the Changemaker category.

If you do, or have other questions about a career in construction law, come listen to Paul Conrod who is one of the speakers at the OBA program Career Paths in Construction. There is an all-star line up of current and former lawyers who practice(d) in construction.

The Superior Court of Justice recently updated their CaseLines Quick Tips page, including outlining how to link between documents.

Notice requirements in Ontario-based construction contracts are strictly interpreted by the courts. With few exceptions, a failure to strictly comply with a notice requirement can be used as a complete bar to otherwise valid claims for costs or time. Because of this, it is essential that parties to construction contracts take the time to assess what their notice obligations are before a dispute arises.

The first decision of 2023 from the Court of Appeal for Ontario deals with the priorities between construction liens and building mortgages when a developer becomes insolvent.

In an insolvency situation, there are often many creditors seeking to recover from a limited pool of assets and determining priorities can be complex. This is also true for construction projects. Contractors, subcontractors, trades, and suppliers all need to know their rights (and limitations) on collecting for services and materials from an insolvent developer.

Want to learn more about the art of construction contract negotiation? Join Faren Bogach, Joshua Strub and John Dowse on February 22 at 1:00 pm. See the flyer for a 10% discount.

A recent amendment to the Rules of Civil Procedure (Rule 16.09(1.1)) allows for a lawyer to prove service of a document by way of a Lawyer’s Certificate of Service (Form 16B.1) if the lawyer served the document or caused it to be served and is satisfied that service was effected. In cases such as this, Form 16B.1 replaces Form 16B Affidavit of Service and can be used as proof of service when filing documents with the Ontario Superior Court of Justice.

There are good reasons to exercise your rights under section 39 of the Construction Act. Some of the reasons include:

1. You need information to properly preserve your lien (like the correct names of the parties, or whether a landlord paid a tenant allowance);
2. You want to know if there is a labour and material bond to secure payment; or,
3. You want information about the statement of accounts to see if your work has been paid by the owner, or whether there is sufficient holdback for your lien.

CCDC contracts are ubiquitous in the construction industry. They are used for all manner of different project types and sizes, so much so that familiarity with these documents is almost becoming required to do business in Ontario’s construction industry.

An important deadline for any litigation is the limitation period, which is the final date by which a lawsuit for specific a claim must be commenced. The limitation period is important because, if missed, the plaintiff may be barred from ever bringing a lawsuit to seek recovery of that claim.

One year ago today, Construct Legal opened during a snow storm that pretty much shut down Toronto. It was a memorable first day.

It has been a journey filled with highs, lows, and everything in between. It hasn't been easy, but it has been rewarding.

Adjudication is a new method of dispute resolution contained in the Ontario Construction Act. It allows parties to a construction contract to enforce a right of payment without going to court.

See the fact sheet Prompt Payment & Adjudication 101 to determine if your contract qualifies for adjudication.