Ontario's Open for Business Act, 2010 (OFBA)
amended numerous statutes, including the Construction Lien
The OFBA amendments are probably the most significant changes to
the Province's construction lien legislation in 20 years. These
amendments have come into force in stages, with the balance
becoming effective on July 1, 2011. Coming-into-force dates for the
various provisions are noted below.
The principal amendments consist of:
an expanded definition of "improvement"
a requirement for developers of land intended to be registered
under the Condominium Act, 1998 to publish notice prior to
repeal of the requirement for an Affidavit of Verification and
changes to reflect electronic registration in the land registry
elimination of the requirement for the "sheltering
statement" when vacating the registration of a Certificate of
DEFINITION OF "IMPROVEMENT" (IN FORCE OCTOBER 25,
The definition in s. 1(1) of the CLA of an
"improvement" which may give rise to a lien right has
been expanded to include "the installation of industrial,
mechanical, electrical or other equipment on land or on any
building, structure or works on the land that is essential to the
normal or intended use of the land, building, structure or
This amendment appears to respond to the case of Kennedy
Electric Ltd v Dana Canada Corp., where such installations
were found not to constitute improvements and were not, therefore,
AMENDMENTS AFFECTING CONDOMINIUMS (IN FORCE JULY 1, 2011)
New s. 33.1 of the CLA requires an owner of land that is
intended to be registered under the Condominium Act, 1998
to publish notice of the intended registration in a construction
trade newspaper at least 5 and not more than 15 days (excluding
Saturdays and holidays) before submitting the condominium
description for approval. Failure to publish the notice exposes an
owner to liability to a person entitled to a lien who suffers
damages as a result of failing to preserve a lien before the
There are companion amendments to the General Regulations under
the CLA which prescribe new Form 24 for the owner's Notice of
Intention to Register a Condominium under section 33.1 of the
REPEAL OF REQUIREMENT FOR AFFIDAVIT OF VERIFICATION (IN FORCE
JULY 1, 2011)
Section 34(6) of the CLA, requiring each claim for lien to be
verified by an affidavit of verification, has been repealed,
apparently in response to a conflict with the current realities of
the electronic land registry system in Ontario.
The OFBA amendments also potentially broaden the class of
individuals who may be cross-examined on a claim for lien, given
the deletion of the affidavit of verification.
ELIMINATION OF REQUIREMENT FOR "SHELTERING STATEMENT"
TO VACATE REGISTRATION OF CERTIFICATE OF ACTION (IN FORCE JULY 1,
Section 44(9) of the CLA has been amended to provide that a lien
claimant, whose lien is sheltered under a lien that has been
vacated, may proceed with an action to enforce the sheltered lien
as if the order to vacate had not been made. This amendment has the
effect of eliminating the requirement for a lawyer to provide a
"sheltering statement" when seeking to vacate the
registration of a certificate of action, as had been required by
Ontario Regulation 19/99, made under the Land Registration
A corresponding amendment has also been made to Regulation 19/99
which now provides that an application to delete a claim for lien,
where a certificate of action is registered, can simply include a
statement that "the certificate is being deleted in accordance
with the CLA". The amendments to Regulation 19/99 also come
into force on July 1, 2011. These amendments to the CLA and
Regulation 19/99 appear to have responded to concerns raised by
members of the bar, given the difficulty in affirmatively stating
that a particular claim for lien was not sheltering.
The Ontario Court of Appeal confirmed that courts will generally support and uphold decisions of condominium directors because they are better positioned than judges to make decisions pertaining to their buildings.
According to the city bylaws in Calgary, the grading of lots for new buildings must be done properly so that the water never flows toward the new building or any other nearby properties, but away from those buildings.
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