Construction Act: Amendments to Regulations
O. Reg. 302/18
O. Reg. 303/18
O. Reg. 304/18
O. Reg. 306/18
Bill or Act:
Summary of Decision:
The following regulations were approved and filed on May 23, 2019:
Analysis of Regulatory Impact:
The regulations do not create an additional regulatory impact. Instead, they ensure that the recent amendments to the Act are successfully implemented by setting out the details and procedures necessary to bring the changes into effect.
February 20, 2019
Summary of Proposal:
On December 6, 2018, the Construction Act (the Act) was amended as part of the Restoring Trust, Transparency and Accountability Act, 2018. The Ministry has amended the regulations under the Act to support the recent legislative amendments and provide greater clarity.
Adjudications under Part II.1 of the Act (O. Reg. 306/18)
ANA Fees and Fee Schedule
The amendments to the regulation include a new exception to the existing regulatory requirement that all fees set by the Authorized Nominating Authority (ANA) must be included in a fee schedule to be published by the ANA (which is subject to the approval of the Attorney General). Under new subsection 9(2.1), this requirement would not apply with respect to fees, costs or charges for training and qualification as an adjudicator.
Sections 13.6, 13.11, and other provisions in the Act were recently amended to revise and clarify the procedural rules for adjudication. Consequential and related amendments to the adjudication regulation were made to:
• Clarify how and when the party who gave the notice of adjudication must provide the documents on which it intends to rely;
• Set out the requirements for the response to a notice of adjudication; and
• Clarify how these procedural requirements should be interpreted in the context of a consolidated adjudication.
Code of Conduct
Section 7 of the regulation provides that the ANA must establish a code of conduct for adjudicators that addresses, at a minimum, the prescribed matters. The section previously provided that the code is subject to the approval of the Minister. The amendments to the adjudication regulation eliminate the requirement for ministerial approval, which is not necessary given the existing regulatory requirements.
Other Technical Amendments
The regulation also includes other technical and housekeeping amendments.
Procedures for Actions Under Part VIII of the Act (O. Reg. 302/18)
The regulation has been amended to provide that a plaintiff may join a lien claim and a claim for breach of a contract or subcontract.
Forms (O. Reg. 303/18)
The Forms regulation has been amended to revise a number of forms to correct errors, provide greater clarity and ensure consistency with the Act.
General (O. Reg. 304/18)
The General regulation has been amended to set out a process for contractors and subcontractors to provide the notice of non-payment of holdback. If the owner gives the contractor a notice of non-payment of holdback, the contractor may provide notice to the subcontractor within three days of receiving that notice, indicating that the contractor will not pay the holdback. The subcontractor could then provide notice to another subcontractor within three days of receiving the notice from the contractor, indicating that the subcontractor will not pay the holdback.
The amendments also allow municipalities to specify how claims for lien are to be given to the clerk of the municipality.
In addition, the regulation includes a housekeeping amendment relating to the registration of condominiums which was omitted in error when the regulation was last amended.
Ministry of the Attorney General
Corporate Policy Unit
720 Bay Street, 7th Floor
Toronto, ON M7A 2S9
May 23, 2019