b'This article was originally published by McMillan LLP on August 11th, 2023. Debris NettingI n construction law, a little knowledge is a dangerous thing.Most members of the construction industry will recall that Ontario made significant changes to what was theConstruction Lien Act(the Old Act) and is now theConstruction Act(the New Act) as of July 1, 2018. We are now at the five-year anniversary of the New Act, and it would be reasonable to think that the New Act governs most ongoing construction projects. However, many industry members continue to encounter surprises when they go to court, where they find that their projects are governed by the OldAct.In this bulletin, we review recent Court decisions on the transition provisions of the New Act to identify best practices that contractors and others providing construction services should adopt to avoid missing lien periods.1. WHEN IN DOUBT, ASSUME YOU HAVE 45 DAYS TOLIEN, NOT 60It seems reasonable that the New Act would govern a6 Coloursconstruction contract or subcontract entered into today, in 2023. However, assuming this could be a costly error. What5 Sizesmatters is when the procurement process started, or when the first contract was entered into for the improvement. 1 3 MaterialsThe date of a partys contract is not conclusive evidenceFlame retardantof whether the Old Act or the New Act applies. Moreover, the information necessary to determine which version applies may not be available to a lien claimant at the timePrivacy Fencingof registering their lien. Accordingly, a cautious approach isneeded.This is particularly true because parties do not have a right to know whether the Old Act or the New Act applies when they place a lien. 2 InCrosslinx Transit Solutions Constructors v. Form & Build Supply (Toronto) Inc., the lien claimant argued that the transition provisions of the New Act result in unfairness to trades lower down in the construction pyramid, who may not know when a prime contract was entered into. The Court rejected this argument and emphasized that public4 Colourspolicy required that either the Old Act or the New Actapply 3 3 Sizesto all parties working on an improvement.Whether the Old Act or the New Act applies depends on the timing of the first procurement process for an improvement. A procurement process starts with the earliest request for qualifications, quotations, proposals or calls for tender. 4 However, the short window to place a lien may not provide enough time for a contractor to determine when the procurement process started. www.enscaf.com877-687-1215In many cases, that information may not be available to theToronto and Edmontoncontractor until well after litigation is underway. We have ACCESS CANADA FALL/WINTER 2023/2024 13'