New Proposed Regulations For Ontario's Construction Act

On August 25, 2025 the Ontario Government published the Discussion Paper for Proposed Regulations under Ontario's Construction Act (the "Discussion Paper").¹ The Discussion Paper features a series of nine proposed regulations to support the implementation of Bill 216: Building Ontario For You Act's amendments ("the Amendments") to Ontario's Construction Act ("the Act").² The proposed regulations are open for comment until September 24, 2025. For a primer on relevant amendments to the Act, consult our earlier posts on adjudication, mandatory annual holdback release, and proper invoices and housekeeping.

Key Takeaways

• Expanded Adjudication Eligibility: The proposed regulations seek to eliminate ambiguity as to the scope of statutory adjudication. The Amendments will prescribe specific subject matters eligible for statutory adjudicationunder s. 13.5 (1) of the Act on the condition that they are "reasonably necessary... in order to make a determination on any other matter". Specifically, these additional matters include: (i) the scope of work required to be performed under a contract or subcontract, (ii) a request for a change in the contract or subcontract price, and (iii) a request for an extension of time in the completion of work required to be performed under a contract or subcontract. These categories risk increasing cost and complexity, particularly for determinations on extensions of time to complete work that require findings on critical path delay and causation.³
• Introduction of Private Adjudicators: The Amendments introduced the concept of "private adjudicators" as an alternative to the Ontario Dispute Adjudication for Construction Contracts ("ODACC") roster of adjudicators. The proposed regulations have provided further detail about the fees private adjudicators will be able to charge. Currently, if adjudication fees for roster adjudicators are not agreed upon by the parties, they are set by ODACC, and are tied to the amounts claimed on the Notice of Adjudication, to a maximum of $800 per hour. The proposed regulations provide that private adjudicators' minimum rate would be $1,000 per hour. The consultation paper accompanying the draft regulations suggests that both private and Registry adjudicators charging $1,000 or more per hour will only be required to pay ODACC a fixed $350 per hour administrative fee. However, private adjudicators will have total administrative fees payable to ODACC capped at $30,000. The draft regulations exempt private adjudicators from continuing ODACC training programs, but still require private adjudicators to obtain ODACC certification. They must also comply with the same code of conduct and standards as Registry adjudicators.
• Fee Payment Reforms: The draft regulations require parties to pay ODACC fees within five days of direction from ODACC to do so. Adjudicators would be permitted to resign following written notice to the parties where fees remain unpaid. Any post-adjudication differences between estimated and actual fees would be reconciled through additional payment or refund as appropriate.
• Publication of Adjudication Decisions: Determinations for adjudications commenced a year or more after the amendments' effective date would be anonymized and published online to create a body of precedents for consistency in future determinations. Details on implementation have not been set out in the regulations, but the cost of anonymization is currently contemplated in the accompanying consultation paper to fall on either the parties to the adjudication or the adjudicator.
• Corrections: The Amendments allow adjudicators to correct minor errors in their determinations within a short period ("Slip Rule"). The draft regulations require adjudicators making corrections to send an electronic copy with corrections to the parties on the same day, and a certified copy within 5 days. The Slip Rule is designed to address accidental or minor errors in adjudicator determinations, which are difficult or impossible to fix under the narrow corrections regime.
• Joinder: This proposal aims to amend O. Reg. 302/18 to explicitly allow the joinder of trust claims and lien actions, providing the court with discretion to sever claims or require separate trials. The draft regulations state that this will not affect the application of Rule 5.05 of the Rules of Civil Procedure, which provides the Court with discretion to refuse motions for joinder in order to ensure joinder of claims is not unduly complicated or delayed (for example, where there is no nexus between the claims of multiple plaintiffs). This proposal addresses past uncertainty over whether joinder of trust claims and lien actions is permitted, as these claims often arise from a common set of facts and are part of a single remedial statute.⁴
• Forms: This proposal includes amending forms prescribed by regulation to align with the recent amendments. Form 1 will require lien claimants to state amounts claimed as holdback and non-holdback, and a new form will be created titled "Notice of Annual Release of Holdback." Form 8 would be updated to reflect the termination date as a publication date of the notice, and Form 21 would be amended to update references to the Accountant of the Ontario Court.
• Bonds: This proposal suggests amending Form 31 to confirm that sub-subcontractor's can claim under the labour and material payment bond without preserving or perfecting a lien. The change aims to provide protection against non-payment to second-tier subcontractors and align with the Federal Government's bond form, ensuring that sub-contractors can recover their share of the holdback and contract monies.
• Publication in Construction Trade Newspapers: This proposal recommends designating the Daily Commercial News, Link2Build, and Ontario Construction News for publishing statutory notices. The current framework allows statutory notices to be published in any trade newspaper, which is broadly defined. This proposal seeks to define clear and authoritative channels for publishing and finding statutory notices.
• Outstanding Issues in the Draft Regulations: Schedule 4 of the Amendments permitted regulations in several additional areas, but the proposed regulations are silent: (i) no methods for price determination are outlined (as contemplated in subsection 1(1) of the Amendments); (ii) no details, conditions or restrictions on the ability of parties to refer disputes to adjudication "with a party to another contract or subcontract for the same improvement" (as contemplated in Section 13.5(3.2) of the Amendments); and (iii) no exceptions to the notice requirement in s. 13.7(1) of the Act are provided. Whether additional regulations not present in the recently released draft will be added following the consultation period remains to be seen.

Closing remarks

The proposed regulations seek to create an effective and responsive adjudication framework for construction disputes in Ontario. Construction stakeholders are encouraged to review and comment on these proposals no later than September 24, 2025.

Footnotes

1. Discussion Paper for Proposed Regulations under the Construction Act.

2. Construction Act, R.S.O. 1990, c. C.30.

3. Construction Act, R.S.O. 1990, c. C.30, s. 13.5.

4. O. Reg. 302/18: PROCEDURES FOR ACTIONS UNDER PART VIII; R.R.O. 1990, Reg. 194: RULES OF CIVIL PROCEDURE

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