Developing Public Policy

Since the early 1980s, Ontario’s Construction Lien Act (the Act) had not been holistically reviewed, due in part to a lack of industry consensus. Latterly, a movement had emerged that strongly advocated the legislation of prompt payment.

In early 2015, the Province of Ontario retained us to conduct an expert review (Review), which was to include broad consultation focusing on the issues of modernization, promptness of payment, and efficiency of dispute resolution.

The Issue

The issue was a) how to conduct an effective consultation process with the construction industry, including contractors, subcontractors, organized labour, suppliers, public and private owners, and others, b) how to identify and properly consider all the relevant issues, and c) how to produce a report that was appropriate to our mandate.

The Strategy

We proceeded to develop a Stakeholders List, and an Issues List, and provide the Stakeholders an Information Package. We then received Stakeholder Submissions and held 30 Consultation Meetings with over 60 Stakeholder groups. As the Review progressed, and the number and the complexity of issues grew, we convened a 15-member expert Advisory Group to discuss the key issues, while direct Stakeholder consultations continued in parallel. On April 30, 2016, we delivered our Report, titled “Striking the Balance”, making 101 recommendations, including the adoption of prompt payment and statutory adjudication in Ontario.

The Impact

Following the delivery of our Report and its release to the public, the Attorney General conducted a series of feedback meetings that confirmed the existence of a broad industry consensus regarding the recommendations. Subsequently, the Ontario Cabinet approved 98 of the 101 recommendations we had made, and the Attorney General continued our retainer to work with his Ministry to develop draft legislation implementing the approved recommendations.

The Result

On May 31, 2017, the Attorney General introduced Bill 142 (the Construction Lien Amendment Act, 2017) for First Reading. Following a further round of consultations, Second Reading on October 4^th, and the hearings of the Standing Committee of the Legislative Assembly held in October and November, the Bill was unanimously passed by the Ontario Legislative Assembly on December 5^th and the new Construction Act received Royal Assent on December 12, 2017. The modernization provisions take effect on July 1, 2018, while the prompt payment and adjudication provisions take effect on October 1, 2019.