What We Do:
After Construction
After your construction project is completed, managing and resolving outstanding scope, delay, payment or warranty disputes can be critical to the overall success of the project for your company. We will work with you to review and assess the merits of claims advanced by or against you and advise you of your rights and exposure under your contract and the Construction Act. Our team of construction lawyers can also help facilitate the closing process, including proper holdback release to help you get paid or to manage payment risk.
Adjudications
Adjudication is a fast-track dispute resolution process that allows parties to present their dispute to an independent third party for a decision. The adjudicator renders a decision in as little as 30 days, with any award to be paid within a further 10 days. With adjudication rights extended as of January 1, 2026, post-completion adjudication is now a possibility for up to 90 days after your work is “completed” or stopped. If you are seeking assistance determining whether a dispute is eligible or suitable for adjudication; or determining whether you are still within the time to bring an adjudication, our lawyers can help. We can also work with you to respond to an adjudication brought by someone else. Kennaley Construction Law can help you to organize, review, and prepare documents to support your case; prepare and file the Notice of Adjudication (or Response) with ODACC, select an adjudicator, manage the exchange of documents, and prepare factual summaries and legal arguments. We can also help you enforce your award and advise on suspension rights if payment is not forthcoming.
Construction Lien Disputes
In Ontario, construction liens secure payment for goods or services that have improved land. Construction liens are often registered in the 45 or 60 days after substantial performance is achieved, when contractors and subcontractors wish to secure unpaid amounts before their lien rights expire. Lien rights are a powerful tool but require parties to navigate complex technical and time-sensitive requirements set out in the Construction Act and the Ontario Rules of Civil Procedure. Partiers must also comply with local jurisdictional court rules and practices.
Lien rights can expire in as few as 45 days after the last day of work, and owners have as few as 20 days to defend a lien, so early legal advice is critical when these matters arise. Kennaley Construction Law can assist your company with all matters related to liens – from giving written notice of a lien, to registering your lien, to bonding off and vacating liens, to adjudicating payment disputes and litigating in court where needed. We have experience in prosecuting and defending even the most complex lien claims. With our team, you will have assistance determining which version of the Construction Act applies (to ensure liens are preserved and perfected within the strict statutory deadlines); determining your contractual rights and obligations vis-à-vis your payor (if you have one) and payees; arranging for liens to be vacated where appropriate; and challenging invalid, exaggerated, or improper liens to clear title. We can also assist you with notices of non-payment and the underlying payment disputes which lead to the liens.
Construction Trust Claims
The statutory trust created by the Construction Act can be an effective mechanism for securing payment to an unpaid contractor or subcontractor. All funds flowing on a construction project are subject to restrictions on how they can be used. The trust obligations require any funds to be applied to the project and prevent them from being diverted to other expenses or projects. As a general rule, anyone receiving payment on the project holds the funds they receive for the benefit of those to whom they are indebted for supplying services and materials to the project. They are not entitled to treat the funds as their own unless those debts have been repaid. Trusts are key to payment because the obligations survive bankruptcy, take priority over other creditors and create personal liability for the trustees. If you have not been paid and the person or company responsible for paying you has received funds on the project, then we can assist you to pursue a breach of trust claim to recover payment.
Warranty Disputes
Warranty claims in construction projects typically cover defects in workmanship and materials (including faulty materials, premature failure or non-compliance with contract documents) for a specified period following substantial completion. Claims must be submitted to the contractor or subcontractor within the time limits set out in the contract, the Ontario New Homes Warranty Plan Act or the Limitations Act. If you are an owner with a warranty claim, we can assist you to review the contract for specific procedures and timelines for the claim and for repairs; to document the defect thoroughly; and to submit your written claim within the warranty period. If you are a contractor or trade who has received a warranty claim, we can help you to review the contract to determine your obligations, and to defend against claims that are out of time, caused by others or not covered by your warranty.
Claims Under Bonds, Guarantees and Insurance
Bonds and insurance policies demand strict adherence to their terms. Giving timely notice – in the proper form – is critical to succeeding with a claim. For owners, a performance bond claim is not a discretionary “wait and see” process because the issuing surety requires early warning and documentation for its investigation. For subcontractors and suppliers, the labour and material payment bond serves as a critical safety net, yet timely notice is, again, key to recovery. Framing an insurance claim under the language of the policy is important to avoid denial of coverage. If you are looking for assistance claiming on or recovering under a bond or insurance policy, Kennaley Construction Law can help. For contractors we can assist you to prepare a detailed and substantiated response to claims made under bonds issued on your behalf.
Arbitration and Mediation
Mediation and arbitration are alternative dispute resolution processes which allow parties to reach a solution without involving the courts. Mediation is often used where preserving relationships is important and parties are willing to negotiate. With mediation, we can help guide you toward a voluntary, mutually-beneficial settlement by offering legal advice, reviewing agreements, reducing power imbalances and formulating creative solutions. Arbitration is used by parties needing a firm decision who want the dispute handled outside of court, often for reasons of speed, cost or privacy. If you are involved in arbitration, we can assist with preparing evidence, drafting documents, and arguing the case before the arbitrator.
Appeals and Judicial Review
In litigation, arbitration and adjudication, there is always a chance of being on the receiving end of an unfavourable decision. In those circumstances, you will need to quickly assess whether you have grounds to challenge the decision, whether you require leave to challenge the decision, and whether your challenge has a reasonable chance of success. We can help with that assessment and advise you on the correct forum and process for bringing (or requesting leave to bring) an appeal or motion for judicial review. Appeal deadlines are short and quick action is needed to avoid appeal rights expiring. You may also be able to take steps to prevent enforcement of the decision while your appeal or judicial review application is heard. The lawyers at Kennaley Construction Law can advise on strategic considerations to help you to help determine your next move. We can then assist you to implement your decision once it is made.
Enforcement
While a win in court, arbitration or adjudication is worth celebrating, it sometimes marks the start of a new challenge for claimants who are faced with a debtor who is unable or unwilling to pay what they owe. If you are a claimant who needs to navigate the challenging enforcement process, we can assist you with determining which enforcement options are available to you, from tracing statutory trust funds; to cross-examining your debtor about their reason for non-payment, income, property, and debts; to suspending under the Construction Act; garnishing bank accounts, wages and other funds; filing a writ of seizure and sale of personal property against a debtor; obtaining an order for sale of land under the Construction Act; filing a writ of seizure and sale of land; and claiming for post-judgment interest.
If you are the unsuccessful party in your case, in addition to assisting with any appeal or judicial review application, we can help negotiate a payment schedule or accompany you at any examination hearing about your financial situation.