Confusion Surrounding the Transition Provisions of Ontario’s Construction Act: Should They Apply on a “Single Improvement” Basis?

This Article is a continuation of our previous on Article on gaps, confusion and inconsistencies in Ontario’s Construction Act.  Here, we focus on the transition provisions which apply to the Act’s changes effective July 1, 2018 and October 1, 2019.  In each circumstance, whether or not the new provisions apply will depend on the interpretation of section 87.3 of the Act, which ties transition to the definition of “improvement”.  This has created a fair bit of confusion (as was recently made clear at a meeting of the Construction and Infrastructure Law Section of the Ontario Bar Association).  

It is unclear why the drafters of the Construction Act tied s.87.3 to the definition of “improvement”.  In their Report Striking a Balance, for example, Bruce Reynolds and Sharon Vogel did not recommend this.  Regardless, doing so was not necessary:  when the Mechanic’s Lien Act became the Construction Lien Act in 1982, the new provisions simply applied to all contracts entered into after a specified date, without referencing the “improvement”.