What We Do:
During Construction
As issues arise during the construction phase of your project, it can be helpful to have a trusted advisor on the other end of the phone to provide feedback and guidance. This is particularly true as the Construction Act continues to change and impose new requirements on owners, contractors and subcontractors.
During construction, you may benefit from assistance drafting notices, claims and sensitive correspondence; negotiating amendments to contracts; documenting circumstances and events; ensuring regulatory and statutory compliance; and early intervention in potential disputes. Our construction lawyers are well versed with the complicated and heavily-regulated construction industry and can offer some peace-of-mind as you work through the issues that arise during the construction stage of your project.
Project Administration
On document-intense and time-sensitive construction projects, Kennaley Construction Law can assist with interpreting contract provisions and Construction Act requirements, implementing prompt payment procedures, administering holdbacks and annual release of holdback, recording change orders, making claims for price and schedule changes, addressing non-payment issues, registering liens and preparing documents; all to help keep projects on track.
When things aren’t going to plan, we can help protect your interests, whether as owner, contractors, trade, lender, surety or other stakeholder, through proactive legal advice, help with gathering evidence, advising on the strengths and weaknesses of your position and suggesting alternative courses of action while considering their advantages and disadvantages, all in the context of your contract terms.
Applying the Construction Act
Complying with the requirements of the Construction Act during the construction phase is paramount to maintain your rights under your contract and at law. The Construction Act leaves little room for error, with drastic consequences (such as losing entitlements and defences, suspension by payees, interest accrual and even personal liability in some cases). During your project, our lawyers can provide guidance about fulfilling your statutory trust obligations, giving and publishing timely notices, making payments on time and responding promptly to notices you receive. We can also help you and your commercial and administrative teams avoid statutory pitfalls by helping to interpret your contractual obligations in the context of the latest Construction Act amendments.
Dealing with Delays, Changes and Extras
Construction in Ontario can be high stakes and delays, changes in the work, and claims for extras are both practically inevitable and the most frequent catalysts for costly litigation. Whether you are an owner, contractor or subcontractor, our firm can assist you by providing proactive advice about managing these risks. We can help you to understand and navigate rigorous notice requirements and “condition precedent” clauses, whether these are included in bespoke agreements or supplementary conditions to standard form agreements. With recent amendments to the Construction Act now in full effect, including mandatory annual holdback release and expanded adjudication rights, we can work with your team to resolve disputes over project scope and payment in real-time, rather than waiting for project completion.
Whether you are navigating a “critical path” delay analysis, negotiating a complex change order, or defending against unmeritorious claims for extras, strict compliance with your contracts and applicable laws will help to preserve your rights. We can help you to protect your bottom line and keep the project moving forward.
Adjudication
Adjudication is a fast-track dispute resolution process that allows Parties to present their dispute to an independent third party for a decision with payment of awarded amounts due within ten days. Providing interim decisions, adjudications are designed for use during the construction phase to keep funds flowing. If you are seeking assistance determining whether a dispute is eligible or suitable for adjudication, our lawyers can help. We can also help you organize, review, and prepare documents (contracts, invoices, site reports); prepare and file the Notice of Adjudication (or Response) with ODACC, select an adjudicator, manage the exchange of documents, prepare factual summaries and legal arguments. We can also help with enforcement of your award and advise on suspension rights if payment is not forthcoming.
Construction Liens
In Ontario, a construction lien (a mechanics’ or builders’ lien in other provinces) is an interest in improved land which secures payment for goods or services that have improved the land. Lien rights are a powerful means for obtaining payment but require navigating a minefield of complex, technical, and time-sensitive requirements from the Construction Act, the Ontario Rules of Civil Procedure, jurisdictional rules and practices specific to the court hearing the dispute. Lien rights can expire in as little as 45 days after the last day of work, and owners have as few as 20 days to defend a lien in court, so early involvement of your lawyers is critical when these matters arise.
Kennaley Construction Law can assist your company with all matters related to liens – from the registration of a lien, to bonding off and vacating a lien, to adjudicating payment disputes and litigating liens 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. We can assist with determining your contractual rights and obligations vis-à-vis your payor (if you have one) and payees and arrange for liens to be vacated where appropriate and assist with notices of non-payment and negotiations and adjudications in respect of the payment dispute generating those liens (or written notices of lien). We can also help to challenge invalid, exaggerated, or improper liens, to clear title.
Suspension and Early Termination
In Ontario, a single procedural error can shift liability from one party to another when it comes to exercising termination or suspension rights on a construction project. Decisions about whether, when and how to suspend work or terminate a contract require careful consideration. Kennaley Construction Law can assist in navigating these critical moments in the context of the Construction Act, including the 2026 amendments which added requirements for termination situations. Our lawyers can counsel you on exercising your rights under standard forms like the CCDC 2, where a contractor’s right to suspend or terminate for non-payment is balanced against strict notice periods and a duty to mitigate.
Whether you are seeking to suspend or terminate your contract or subcontract for any reason while avoiding a claim; or need to respond to a threat of suspension or termination, we can help you to consider your options and document your position to best protect your company and your team.
Claims under Bonds, Guarantees and Insurance
Bonds and insurance policies demand strict adherence to their terms and 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 – as the issuing surety will require 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.