Additional guidance with respect to the transition provisions of the Construction Act.

Date: April 2023

A recent motions decision from Associate Justice Wiebe provided some additional guidance with respect to the transition provisions of the Construction Act.

In his decision, AJ Wiebe had to determine whether the owner’s contract with the construction manager was a “contract for the improvement” under the transition provision at s. 87.3(1)(a) of the Construction Act. The contract in question was entered into on March 1, 2018, and so if it was determined that it was a “contract for the improvement”, the old Construction Act would apply.

In its decision AJ Wiebe found that “it is well established now that pure construction managers…who provide only services, have lien rights along with all the other parties who provide services and materials to the improvement.” AJ Wiebe went on to find that if construction managers with contracts with the owners have lien rights than they surely are “contractors” with “contracts” for the purpose of s. 87.3(1)(a).

As a result, AJ Wiebe determined that the old Construction Act applied because the contract with the construction manager was entered into before July 1, 2018. Consistent with the decision in Crosslinx v. Form & Build Supply (Toronto) Inc., AJ Wiebe found that all other contracts with respect to the same improvement were also governed by the old Construction Act, regardless of the dates of those contracts.

Click here for a link to the decision.

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