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pays other entitled payees down forces owners to process invoices condominium corporations. These
the line within 14 days. extremely quickly. comments only briefly summarize the
• Overall, the holdback regime 4. Adjudication: new amendments to the Construction
revisions will expedite the • Previous provisions related Act and presume the reader is familiar
payments of funds to contractors, to specific disputes eligible with the pre-existing provisions (which
but will narrow a condo’s for adjudication, and criteria were already complicated enough).
holdback remedies. applicable to the adjudicator’s The more detailed technicalities and
2. Lien Expiry: powers have both been repealed, actual practical implications will need
• Various contractors’ rights to leaving these to be addressed to be addressed both by construction
file a Lien as security expires 60 by future regulations. This contract provisions and in practice.
days after the owner provides the may broaden both the types Condos undertaking construction
above Notice of Annual Release of of disputes permissible and work must manage their cash flow and
Accrued Holdback (that does not resolutions possible. plan to be able to expedite payment
affect liens related to services or • There is now a 90-day window for of “proper invoices.” Managers must
materials supplied thereafter). referring disputes by means of a review invoices immediately and care-
• Holdback payments only need Notice of Adjudication following fully dispute any “proper invoice” by
to be released by the condo if the completion, abandonment notice to the contractor within 7 days
no liens have been filed by the or termination of a construction if they believe an invoice is deficient.
end of that specified 60-day contract. Condos must diarize the Contract
deadline. Holdbacks must also • A party may request that an Anniversary Date to comply with the
be paid once all liens registered adjudicator consolidate multiple 14-day constraints for the Notice of
on title claimable against the disputes regarding the same Annual Release of Accrued Holdback
holdback have been satisfied, or improvement. requirements. Proper tracking, docu-
have expired under certification • Changes applicable to the mentation and timely communication
or declaration of substantial adjudication process aim to with contractors will be key to mini-
performance of the contract, provide more flexible and efficient mizing risks and ensuring smooth
or vacated, according to the dispute resolution without court operations. Condos should carefully
timelines specified in the Act. intervention. review their construction contracts,
• Updates to the lien provision 5. Transition: expedited cheque processing practices
aim to streamline the release of • Most amendments take effect and internal processes to ensure they
holdbacks and promote timely immediately. The new annual are complying with the new legislative
payments. holdback regime also mandatorily changes. Managers should coordi-
3. Proper Invoice: applies to post-July 1, 2018 nate with their project consultants and
• Now, an updated list of contracts, but only after the lawyers to provide assistance early and at
information must be included in second Contract Anniversary critical stages of construction. n
a contractor’s “proper invoice”. Date arising after November 7,
If an invoice is missing details, 2024. Contracts entered before Alex Young is a condo corporate and
it may still be deemed proper July 1, 2018 are exempt from the commercial lawyer and associate of
- unless the owner notifies the amendments. Gardiner Miller Arnold LLP.
contractor of deficiencies within
7 days. Implications for Condos: J. Robert Gardiner, B.A., LL.B., ACCI,
• This “proper invoice” deeming The Construction Act amendments FCCI, is the senior partner of Gardiner
provision relieves contractors referred to in Bill 216 impose several Miller Arnold LLP practicing condo law.
from administrative errors but important implications for Ontario gmalaw.ca

46 I CM Magazine WINTER 2024