An owner in a construction contract is required to retain 10% of the price of the services and materials as they are supplied under the contract. The holdback is to be retained until all liens that may be claimed against the holdback have expired, been satisfied, discharged or otherwise provided for under the Construction Act. The requirement to retain holdback applies from large infrastructure projects to small home renovations.

A recent amendment to the Rules of the Small Claims Court allows for a lawyer or paralegal to prove service of a document by way of a Certificate of Service (Form 8B) if the lawyer or paralegal served the document or caused it to be served and is satisfied that service was effected. In cases such as this,

If you want to learn more about Faren Bogach and her experience practicing in private practice with three young kids, check out Prudence Tsui's blog,

Residential construction and renovation can be complicated. So can the contracts. Contractors and homeowners alike should understand when the Ontario Consumer Protection Act, 2002 (the CPA) applies and what its requirements are. The recent Ontario Superior Court of Justice case of The Fifth Wall Corp. v Tonelli, 2022 ONSC 6590 helps to clarify when the CPA applies to residential construction and renovation contracts.

We are edging closer to celebrating our first anniversary at Construct Legal. We are grateful to our clients and referral sources for trusting us with their business. We wish everyone a relaxing holiday season.

“But the payment certifier hasn’t approved the invoice yet” is no longer a reason for an owner to refuse to pay a contractor’s proper invoice.

Any owner must pay a contractor within 28 days of receiving the contractor’s proper invoice, unless the owner gives the contractor a Notice of Non-Payment within 14 calendar days of receiving the proper invoice.

The golden rule when dealing with construction liens is that they must be preserved and perfected on time. Preserving a lien requires registering a claim for lien on title to the property or in certain cases, giving a copy of the claim for lien through the proper channels. Perfecting a lien is the next step in the process and requires commencing an action to enforce the lien and potentially registering a certificate of action on title to the relevant property. Ontario’s courts have repeatedly confirmed that they have no ability to revive an expired lien if a deadline is missed—so it is essential for contractors and suppliers to be aware of the timelines associated with their lien rights.

It has taken almost 11 months, but we finally have our firm photos on our website!  Please check out our photos and read our bios to learn a bit more about our team. 

What are reprisal clauses and what is their effect?

A reprisal clause is a provision in an owner’s procurement documents, or, for a government owner, its by-laws or procurement policy, allowing the owner to reject or exclude any bidders or proponents that are in a dispute with the owner.

Tara is our firm’s Legal Assistant Extraordinaire!

The Heavy Construction Association of Windsor is challenging a decision by the County of Essex to obtain an estimate directly from a contractor following a procurement process where no contract was awarded. Procurement processes are complex but important, especially for public projects. Parties involved in procurement should ensure they follow all processes and policies carefully. Otherwise, bidders may be excluded or, as in this case, owners may face legal action in court.

In Bennett Law Chambers Professional Corporation v. Camcentre Holdings Inc., 2022 ONCA 658, the landlord issued its tenant a notice to vacate a commercial lease on the basis that it wanted to demolish the property in order to build condos.

Preparing to serve and file a notice of motion with the Ontario Superior Court of Justice? Make sure you’re using the most up-to-date Form 37A available on the Rules of Civil Procedure Forms website (http://ontariocourtforms.on.ca/en/rules-of-civil-procedure-forms/).

The prompt payment regime under the Construction Act, requires "prompt" payment of invoices submitted by the contractor to the owner. A contractor is defined in the Construction Act as the party contracting with or employed directly by the owner or an agent of the owner to supply services or materials to an improvement. This means that a contractor includes anyone with a direct contract with the owner, for example: an architect, designer or supplier.

The triggering event for prompt payment is the contractor giving the owner a “proper invoice”, i.e. a written bill or other request for payment. After given a proper invoice, an owner is required to:

The Construction Design Alliance of Ontario (CDAO) has some interesting survey results on the adoption of prompt payment and adjudication in Ontario, including that:

• 77% of public projects;
• 53% of private projects

One of the first questions a contractor or supplier looking to lien a property needs to answer is whether the services they provided are lienable under the Construction Act. At a high-level, the Construction Act states that a person must supply materials or services to an improvement before that person is entitled to a lien.

A construction law firm holds the expertise to assist you with issues as they arise from the beginning to the end of a construction project. This includes drafting, reviewing and negotiating contracts as well as managing and litigating disputes. A construction law firm has a team to help with your questions and problems.

On November 9, 2022, @ Faren Bogach will be speaking about practicing law and being a present parent… without the sugar coating. From infertility to making partner (at 9 months pregnant), she is going to share the good, the bad and the ugly.

We are edging closer to 2023 … but before we do, it is time to review this year’s hot topics and cases in construction/infrastructure.

Join (virtually) @Faren Bogach from Construct Legal, along with @Brendan Bowles @Jay Nathwani @Marcia Oliver at this program chaired by @Lia Bruschetta and @Karen Groulx.

Are you considering adjudication for your construction dispute? The Divisional Court recently provided helpful guidance to the construction industry on the purpose and availability of adjudication. Check out our latest blog post from Paul Conrod discussing this new case!