CLA reviewers Bruce Reynolds and Sharon Vogel have posted 27 “new issues” they say they are considering in their review. These issues are in addition to a diversity of topics raised earlier in the review process, and include:
Lienability
1. Consider whether municipal lands should be considered in the same manner as federal and provincial crown lands vis-a-vis lienabilty;
2. Consider clarifying the process by which a lien is given;
3. Consider removing the notice of lien provisions;
4. Consider further clarification of the definition of improvement (e.g. distinguishing between construction and IT projects and service greements); and
5. Consider whether the process with respect to liening condominium units needs to be modified.
Holdback and Substantial Performance
6. Consider with respect to release of holdback, drawing a distinction with respect to services (such as design services) rendered prior to commencement of construction;
7. Consider use of certain financial instruments (i.e. letters of credit or bonds) or cash for holdback purposes;
8. Consider implementing a deficiency holdback;
9. Consider releasing tranches of holdback as the project achieves designated percentages of completion; and
10. Consider annual release of holdback.
Prompt Payment or Timely Payment for Construction Work
11. Consider punitive “interest” as a mechanism for breach of payment terms;
12. Consider potential conflicts with prompt payment legislation and regulatory legislation such as the professional engineers act and/or architects act;
13. Consider the causes of payment delays and how they can be addressed in the act or other legislation;
14. Consider whether or not technological solutions would improve prompt payment issues (e.g. an automatic rejection of incomplete progress draws); and
15. Consider implementing KPIs (Key Performance Indicators) as a method of motivating prompt payment.
Alternative Dispute Resolution
16. Consider introducing an adjudication mechanism for construction disputes in Ontario;
a) Consider how adjudication could work where there is the ability to preserve a lien;
b) Consider the potential biases of adjudicators;
c) Consider qualification process for adjudicators; and
d) Consider when an adjudicated decision would have to be appealed.
Miscellaneous
17. Consider false claims legislation similar to that used in the United States;
18. Consider modifications to the statutory settlement meeting provisions;
19. Consider issues related to case management references;
20. Consider implementing changes to documentary disclosure requirements;
21. Consider improving harmonization of the act with the Registry Act.
22. Consider allowing electrical contractors an ability to seize machinery and equipment from a customer that has not paid the contractor;
23. Consider a requirement for additional information in the certificate of substantial performance;
24. Consider exemptions or carve outs from lien legislation for specific forms of contract;
25. Consider the use of the Daily Commercial News as a medium for publications;
26. Consider the effect of the act on projects regulated by the Ontario Energy Board; and
27. Consider providing a practice guide or series of interpretative bulletins to accompany new legislation.