Are portables built for a school, “improvements” and lienable under the Construction Act?

Date: April 2023

The question of whether there has been an “improvement” within the meaning of the Construction Act is not always straight-forward. In a recent decision on a summary judgment motion, Justice A. Doyle, does a great job laying out development in the law on this question.

After a thorough review of the legal framework, including a review of legislation, extrinsic sources, and case law discussing whether there has been an “improvement”, Justice A. Doyle found that portables constructed for a school are in fact “improvements” within the meaning of the Construction Act.

The determination is a fact driven exercise, and in this case the portables were found to be “improvements” within the meaning of the Construction Act because:

  • the portables were completed on site;
  • the final destination of the portables was known to the parties thereby there was a connection to the school site;
  • the school board regularly held back 10% of funds advanced to the contractor; and
  • the portables enhanced the value of the school.

Justice A. Boyle made it clear that the fact that the portable could be removed is not the sole consideration, especially considering “modern engineering techniques permit virtually every structure to be removed from one site and re-assembled elsewhere.”

Certainly an important and very useful read for construction lawyers in Ontario (and across the country).

Click here for a link to the decision.

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