Managing Construction Liens in Ontario 2022

Lea Nebel
Partner, Blaney McMurtry LLP

Maria Ruberto
Partner, Pallett Valo LLP

• What’s new for 2022? Key updates, impacts and issues you need to know
• Geographic distinctions – including virtual proceedings
• The class‑action like nature of a lien proceeding – includes references and discovery
• How to set a lien down for trial
• Understanding the new procedures under the Construction Act:
  • Scott Schedules, Vetting Committee, Carriage and Salvage Costs
  • Pre‑Trials and Settlement Meetings
  • Reports and Interim Reports
  • Consolidation orders and consecutive trials
  • How to get a trial management hearing outside of Toronto

10:30 a.m.
Health Break

Anna Esposito
Certified Specialist Construction Law, Partner, Pallett Valo LLP

• Overview of the interplay between construction liens and the adjudication regime
• The importance of relationships in the construction industry and the related dynamics
• Pros and cons of alternatives to liens – includes other security and dispute resolution procedures
• Deciding whether to lien or not after losing at adjudication
• Monetary limits and minimums – are there amounts too small for a lien?
• What to do when the CRA gets involved?
• When should you pursue other remedies?

11:40 a.m.
Health Break

Paul Hancock
Partner, Goldman Sloan Nash & Haber LLP

Edward Lynde QArb
Associate, Urquhart Singleton Reynolds Vogel LLP

• Key developments and risks in the face of ongoing pandemic impacts
• What’s the difference between a capital repair and maintenance?
• Do construction managers have liens in Ontario?
• What about design professionals?
• Liens from union workers?
• Oddball and other liens, including the non‑lienable

12:50 p.m.
Lunch Break

Join Associate Justice Charles Wiebe for an interactive walk‑through of a lien trial, focusing on best practices and recommended “dos and don’ts” when appearing before a decision‑maker in court, including virtual proceedings. The session will include a valuable tip sheet, which will serve as a vital resource long after the program concludes.

2:30 p.m.
Health Break

Chris Burr
Partner, Blake, Cassels & Graydon LLP

Philip Cho
Partner, WeirFoulds LLP

• Overview of the current landscape, key developments and trends (includes pandemic impacts)
• Understanding the collision between bankruptcy and construction trusts
• Overview of the CCAA and BIA – how do they work?
• What are the lien priorities during an insolvency
• What is a CCAA proceeding? What is a stay of proceedings?
• What is a lien regularization order, or what happens when you don’t follow the Act and the CCAA kicks‑in?
• Top tips and best practices for dealing with an insolvent contractual party:
  • Managing the contract in the face of insolvent party
  • Unique features of dispute resolution proceedings
  • Getting the project built while containing risks
  • How to protect yourself more effectively

3:40 p.m.
Health Break

Catherine DiMarco
Partner, Heal & Co LLP

Robert Kennaley
Principal, Kennaley Construction Law

Expert faculty will give you the latest updates to identify crucial gaps and inconsistencies in the law. You will get practical guidance on how to manage these through both contractual language and field strategies.

• Transition provisions and multiple contracts on a project: which version of the Act applies?
• Release of holdback on a phased or annual basis
• Preserving the lien against a Municipality
• Public contract and the contractor’s bonding obligations
• “Giving”, “providing” and “serving” of documents under the Act
• What must, and can, be included in the Proper Invoice?
• What is the timing, effect and import of a Notice of Termination of Contract?
• Limitation involving ‘no adjudication once the contract or subcontract is complete’
• Scope of the ‘one matter per adjudication’ limitation
• Importance of the Notice of Adjudication and the choice of Adjudicator

5:00 p.m.
Program Concludes

This program includes two online modules designed to clarify core and complex lien concepts, and provide you with practical insights, guidance and materials that will serve as valuable resources long after the program concludes. We recommend viewing both online modules before the program begins.

Construction Liens in Ontario: The Essentials
(70 mins, on demand, recorded in 2021)

Paul Hancock
Partner, Goldman Sloan Nash & Haber LLP

This online module covers fundamental lien rights and principles in Ontario for those who are newer liens or who may benefit from a succinct refresher.

• What is a lien?
• When do lien rights arise and when do they expire? Is there an ultimate expiry period?
• How to recognize and differentiate the various types of liens
• Understanding how to preserve, register and give a lien – including vacating, discharging and perfecting
• What is the liability for exaggerated liens?
• Troubleshooting tips ‑ what to do when there are two subcontracts issued to one trade (2 liens)? Federal land?

Key Changes to Complex Liens Under Ontario’s Construction Act
(65 mins, on demand, recorded in 2020)

Ted Rotenberg
Drudi Alexiou Kuchar LLP

This online session is suited to all and covers key principles and tips for dealing with these more complex lien matters.

• Leases – key steps, determining ownership and the pros and cons in your situation
• Condominiums – key steps, entitlement and analyzing whether to lien any work completed by or on behalf of the condominium corporation
• Municipalities and Crown Agencies – key principles, mechanics and navigational tips
• Subdivisions – review of entitlement, lot and by‑lot provisions, park lands and buffer zones, roads and residential homes
• Troubleshooting tips for avoiding common pitfalls