LATEST NEWS
December 28, 2009
Legal affairs
In tough economic times, understanding construction liens is essential
In today’s turbulent economy, it is even more important contractors and subcontractors fully understand their lien rights if they want to survive. This message was delivered by Bruce Reynolds, a partner with Borden Ladner Gervais LLP, at a recent Canadian Institute Construction Superconference.
“These days the telephones are ringing in the offices of Ontario construction lawyers,” said Reynolds in a summary of the market realities the industry now faces, such as increased pressure by banks to renegotiate loan terms.
An essential chore for contractors is to fully understand the Ontario Construction Lien Act to make effective use of the remedies it offers them. Reynolds said this is not easy, as the Act is one of the most complex pieces of legislation of its kind in the world.
Lien rights expire 45 days after the Certificate of Substantial Performance has been published and once that occurs a lien can never be revived, he pointed out.
A lien is simply the right of a “person, who supplied services or materials to an improvement” to sell the property on which the improvement was made so that value of services or materials can be recovered.
A person can include a contractor, subcontractor, worker or design professional and “certain types of suppliers.”
And it was that particular phrase that framed a good part of his presentation and sparked some probing questions from the audience, many of whom were lawyers and public sector officials as opposed to contractors.
An entitlement to lien arises when a person has supplied “lienable” services or materials to a construction improvement.
An improvement is defined by the Act “as any alternation, addition, or repair to any construction, erection or installation of any land includes the demolition or removal of any building, structure or works, or part thereof.”
What constitutes an improvement from the perspective of some contractors and suppliers doesn’t always mesh with realities of the Act, he pointed out.
This is especially the case in many industrial construction projects where “the base building is very much an accessory to the equipment which is often fabricated off site.”
This has the potential for disputes over whether certain work, such as mechanical or electrical installation, is really construction or part of the equipment installation process, said Reynolds.
To illustrate that point, he summarized the implications for the construction industry of the Kennedy Electric decision.
Lower court decisions on this case were upheld when a leave to appeal to the Supreme Court of Canada was dismissed. That dismissal effectively ended long legal efforts by Kennedy Electric and Cassidy Industrial Contractors, which had registered liens against a property owned by the Dana Canada Corporation for the design and installation of an assembly line in a Ford truck plant.
The courts ruled the assembly line did not fall within the definition of “an improvement” because the assembly line was portable.
| MOST POPULAR STORIES |
- Sinkhole threatens Calgary building’s stability
- Highrise tool toss lands Calgary contractor in hot water
- Mike Holmes partners with First Nations on community-building pilot project
- Pine beetle spurs infrastructure construction in British Columbia
- City of Vancouver report slams botched demolition
- 20 Most Popular Stories
| TODAY’S TOP CONSTRUCTION PROJECTS |
These projects have been selected from 372 projects with a total value of $3,335,585,749 that Reed Construction Data Building Reports reported on yesterday.
$1,200,000,000 Calgary AB Negotiated
$520,000,000 Grande Prairie AB Prebid
$75,000,000 Edmonton AB Negotiated
| CURRENT STORIES |
- Pine beetle spurs infrastructure construction in British Columbia
- Work continues on Canadian Museum of Human Rights in Winnipeg
- City of Vancouver report slams botched demolition
- Underinvestment in infrastructure costs workers and firms: report
- MMM Group oversees Calgary Airport expansion
- Underground utilities disaster looms
- Georgian College expansion goes green in Collingwood, Ontario
- Construction industry lobbies for mine development in William’s Lake, British Columbia
- Mike Holmes partners with First Nations on community-building pilot project
- PCL Constructors Canada to build new RCMP headquarters
- Construction employment edges up slightly
- Archaeological assessments an integral part of pre-construction
- Outland Camps offers flexibility from coast to coast
- VIDEO: Canada’s economy is slowing down
- City of Vancouver report slams botched demolition
- VIDEO: Canada should embrace rainscreen cladding systems
- Australian Labor government defends stimulus after allegations of political bias
- Western Construction wins contract for Bonnybrook Waste Treatment Facility
- Stimulus spending on U.S. national parks a major job creator
- Fences provide first line of defence
- Directional drilling less disruptive for locals
- Ontario Brownfield Act to change remediation rules next year
- High-tech surveillance protects construction sites from thieves
- Market grows for energy efficient construction trailers
- Site photographers focus on staying in the picture
- Fast Wrap asset protection firm coming to Canada
| ALEX’S ECONOMICS BLOG |

Reed Construction Data Chief Economist Alex Carrick discusses current developments in the North American economic environment with emphasis on the construction industry.
- Canadian railway freight traffic on a better track (July 28, 2010)
- Waiting to see if the other shoe drops in Canada (July 16, 2010)
- Who wants Canada’s oil? (July 7, 2010)
- More

















