As a part of the Ontario Government's "Open for
Business" initiative, the Ontario Legislature recently passed
the Open for Business Act, 2010. This Act
includes the following noteworthy changes to the Construction
Amendment to the definition of "improvement;"
Requirement that an owner publish notice of the intended
registration of a condominium;
Removal of the requirement for an Affidavit of Verification for
a claim for lien to be valid; and
deal with the enforcement of sheltered liens.
Definition of "Improvement"
In the recent Kennedy Electric decision, the court held
that the supplier of a 100,000 square-foot, 500,000 ton assembly
line consisting of 100 mezzanines and 165 platforms did not have
lien rights, because the supply of the assembly line did not fall
within the definition of an "improvement" since it was
portable. In what was likely a response to this case, the
definition of an "improvement" now expressly includes the
installation of industrial, mechanical, electrical or other
equipment on the land that is essential to the normal or intended
use of the land. This will have a significant impact on the manner
in which the courts deal with the application of the
Construction Lien Act to equipment suppliers. This
amendment is now in force.
Under the new amendments, condominium developers must publish
notice of their intention to register the condominium declaration
in accordance with the Condominium Act, 1998 in a
construction trade newspaper prior to registration. The
intent behind this requirement is to allow unpaid contractors, who
wish to register liens, notice of the pending registration of the
condominium declaration, so that they can preserve their lien
rights before the declaration is registered.
Prior to the registration of the declaration, the condominium
land can be liened in the usual manner even if the work of the
contractor makes up parts of the project which, after registration
of the declaration, will be components of the common elements. This
notice period will allow contractors an opportunity to avoid the
much more costly and complex requirement of liening the common
elements of a condominium after the declaration has been
Affidavit of Verification
Historically, a claim for lien had to be verified by an
Affidavit of Verification which was typically sworn by the lien
claimant. In keeping up with the new electronic registration system
for land titles documents, verifying a claim for lien by Affidavit
is no longer required.
A lien claimant whose lien is sheltered under a certificate of
action that has been vacated by court order, will still be able to
proceed with an action to enforce its sheltered lien as if the
order to vacate had not been made, once this new amendment comes
into force. This amendment was introduced to facilitate the
vacating of liens by court order, and to protect the rights of
sheltered lien claimants. This amendment, and the amendments
dealing with the liening of condominiums and the affidavit of
verification, will come into force on proclamation of the Open
for Business Act, 2010.
Roger Gillott is a partner and has significant
expertise in construction litigation, arbitration and dispute
resolution proceedings and extensive advocacy experience in trial,
appellate and arbitration proceedings, including submissions to the
Supreme Court of Canada. Andrew Wong is a partner
whose practice includes work in international and Canadian
construction law and infrastructure matters including project
planning and related corporate advice, risk assessment and
procurement issues.Carly Fidler is an articling
student who completed her J.D. at Osgoode Hall. She obtained her
B.A. in Sociology and Social Anthropology from Dalhousie
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Russell v. Township of Georgian Bay provides a useful reminder of the fact that while municipal officials sometimes appear to hold all of the cards in disputes with home owners, that is not always the case.
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