As previously reported,1 the Building Ontario For You Act ("Bill 216") introduced key amendments to the Construction Act (the "Act") and received Royal Assent on November 6, 2024. The amendments to the Act originate from an independent review, industry consultation, and final report prepared at the request of the Attorney General (the "2024 Report"). The amendments have yet to come into force as, in part, key regulations applicable to the amendments have yet to be released.
On August 25, 2025, we came one step closer to the amendments coming into force as the Province released for comment a new set of regulations to the Act (the "Draft Regulations"), together with a Consultation Paper on the Ontario Regulatory Registry. Comments are due by September 24, 2025.
The Draft Regulations entirely replace existing Ontario Regulation 306/18 – Adjudications under Part II.1 of the Act and amend certain other regulations existing under the Act. This bulletin highlights the key aspects to the Draft Regulations.
(1) Expanding the Scope of Adjudication
The 2024 Report included several recommendations centered on strengthening and expanding access to and the use of adjudication in Ontario. While many of these recommendations were implemented through Bill 216, key details and further required changes were left to the regulations as described below.
a. Expansion of Matters Eligible for Adjudication
The Draft Regulations add contractual performance issues linked to payment disputes to matters that can be adjudicated under the Act. Specifically, the Draft Regulations expand the list of matters for adjudication to include the following matters, "if it is reasonably necessary to resolve a dispute" in order to make a determination on another matter that may be adjudicated:
- the scope of work required to be performed under the contract.
- a request for a change in the contract price.
- a request for an extension of time in the completion of work required to be performed under the contract.
According to the Consultation Paper, this change would: "clarify for adjudicators and the construction industry when it's permissible to address issues outside the 'four corners' of a proper invoice, while maintaining adjudication's core focus on payment disputes that could delay and derail construction projects."2
In furtherance of the mandatory annual holdback release introduced by the Bill 216 amendments, the Draft Regulations also modify paragraph 5 of the list of matters that can be adjudicated to include disputes relating to the annual release of holdback and holdback payments.
b. Private Adjudicators
Consistent with a recommendation in the 2024 Report,3 the Draft Regulations permit the use of private adjudicators in addition to the existing ODACC roster. Although private adjudicators would still be qualified and certified by ODACC and would be subject to the same code of conduct, the certification process would be shorter, a different fee structure would apply, and they would not appear on the ODACC adjudicator roster. Also, private adjudicators would be required to charge a minimum of $1,000 per hour for all adjudications they perform, and $350 of each hourly fee would be payable in administrative fees to ODACC, up to $30,000.4
c. Publication of Adjudication Determinations
Presently, adjudication determinations are kept confidential between the parties. However, the Draft Regulations contemplate the public release of adjudication determinations in an effort to establish a body of precedents.5
Prior to being released, the determinations would be anonymized to ensure that the identity of the parties and the project at issue cannot be inferred. Interestingly, the Consultation Paper recommends that the cost of anonymizing adjudication determinations be borne by either the parties or the adjudicator.6
(2) Technical Amendments to the Act
In addition to the proposed amendments to the adjudication regime, the Draft Regulations include amendments to implement technical changes which are "intended to improve the effectiveness of the Act and to provide greater clarity and certainty to the construction industry."7
a. Joinder
Although prior amendments to the Act repealed the prohibition against joinder of lien and trust claims, the Consultation Paper noted that the lack of enabling language in either the Act or its regulations led to uncertainty and confusion. On this basis, the Draft Regulations amend Section 3 of the current Ontario Regulation 302/18 to allow a party to "join a lien claim and a claim for breach of trust under Part II of the Act."8
b. Forms
A number of technical amendments to the Forms under existing Ontario Regulation 303/18 are also included in the Draft Regulations to give effect to amendments made to the Act by Bill 216. In particular, the Consultation Paper describes the proposed amendments as follows:
- Form 1 (Written Notice of Lien under Subsection 1(1) of the Act) is to be amended to require lien claimants to indicate the amount claimed as holdback and non-holdback;
- creation of a new Form 6 for the Notice of Annual Release of Holdback which would include a statement setting out the amount of holdback that will be paid to the contractor for services or materials supplied in the year preceding the anniversary date;
- Form 8 (Notice of Termination under Subsection 31(6) of the Act) is to be amended to indicate that the contract is terminated on the date of publication of a Notice of Termination;
- Form 21 (Financial Guarantee Bond under Section 44 of the Act) is to be amended to update the reference to the accountant to the Accountant of the Superior Court of Justice;9 and
- Form 31 (Labour and Material Payment Bond under Section 85.1 of the Act) is to be amended to confirm a sub-subcontractor's right to claim under the bond, including in circumstances the sub-subcontractor has not preserved or perfected a lien.
c. Publication in Construction Trade Newspapers
The definition of "construction trade newspaper" under existing Ontario Regulation 304/18 is currently broadly defined to include any newspaper: (a) that is published either in paper format with circulation generally throughout Ontario or in electronic format in Ontario, (b) that is published at least daily on all days other than Saturdays and holidays, (c) in which calls for tender on construction contracts are customarily published, and (d) that is primarily devoted to the publication of matters of concern to the construction industry.
Consistent with a recommendation in the 2024 Report, the Draft Regulations propose to modify the definition of "construction trade newspaper" to the following websites:
These amendments are intended to address the uncertainty described in the 2024 Report as to where to search for and publish statutory notices under the Act.10
(3) Effective Date
Amendments to the Act introduced by Bill 216 included a new Subsection 87.4(2) which effectively provides that most of the amendments will apply with immediate effect, except as otherwise provided. More information about these transition provisions can be found here. The Consultation Report seeks public comment as to when these legislative amendments should take effect.
Footnotes
1 See previous McMillan bulletins dated November 12, 2024, and August 7, 2025.
2 Discussion Paper – Proposed Regulatory Amendments Following Independent 2024 Ontario Construction Act Review dated August 25, 2025 (the "Consultation Paper") at pgs. 11-12.
3 With respect to Section 13.9 of the Act, the 2024 Report recommended that the Province: "[a]mend s. 13.9 to permit the parties to agree on the appointment of any natural person who has completed ODACC training as a private adjudicator for any referred dispute, provided that the appointment is made in writing, signed by the parties and the proposed adjudicator, and discloses all commercial terms between the parties including provision for the payment by the parties of ODACC's one-time administration charge for such private adjudications. The one-time administration fee should be recalibrated periodically as necessary to fairly compensate ODACC for the actual cost of administrative services to be provided together with reasonable recovery of overhead and profit."
4 Consultation Paper at pg. 14.
5 Ibid. at pg. 19.
6 Ibid. at pg. 20.
7 Ibid. at pg. 21.
8 Ibid. at pg. 21.
9 Ibid. at pg. 24.
10 Ibid. at pg. 27.
The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.
© McMillan LLP 2025
