b'LEGAL COLUMNA CAUTIOUS APPROACH IS WARRANTED, AS THE EXISTENCE AND TIMING OF PRE-EXISTING AGREEMENTS ARE UNLIKELY TO BE KNOWN BY SUBCONTRACTORS OR OTHER PARTIES ENGAGED AT A LATER STAGE OF THE PROJECT. DNRis also notable because it takes a broad interpretation of the concept of a contract for the improvement. BeforeDNR, there was uncertainty about when a construction managers services would qualify for lien rights. 9 By finding that the services of a pure construction manager qualified for lien rights inDNR, the Court has shown a clear desire to cast a wide net with its interpretation of what is a qualifying contract for the improvement. This consideration impacts whether the Old Act or the New Act applies, because an expansive definition of contract for the improvement could cause the Old Act to apply by capturing early-stage agreements that pre-date July 1, 2018 (e.g. contracts for planning, seen several cases where the procurement process began witharchitectural designs or site clearing).private email exchanges between an owner and another party. NoThe statutory definition of improvement is often broader than the lien claimant could have known about them when placing theirconventional definition of a construction project. An improvement lien. The takeaway is that the procurement process likely startedcomprises any alteration, addition or repair to the land, or any earlier than one may think, and so, when in doubt, it is prudent toconstruction, erection or installation on the land or any building assume there are only 45 days to lien. structure or works on the land. 10 A party would be taking on significant risk by assuming that any contracts pre-dating July 2. WHEN IN DOUBT, ASSUME YOU ARE NOT THE FIRST1, 2018, were unrelated to the project that the party was hired toCONTRACT FOR THE IMPROVEMENT complete. The Court may well find that the pre-existing contracts Even if there is no procurement process and a party entered intoand the project were all part of one improvement. And if they were their contract in 2023, the Old Act may apply if there is anotherall related to one improvement, then the Old Act likely applies.contract for the same improvement which came earlier. A cautious approach is warranted, as the existence and timing of Parties have learned this lesson the hard way. InDNR Restorationpre-existing agreements are unlikely to be known by subcontractors or other parties engaged at a later stage of the project. Parties Inc. v. Trac Developments Inc. (DNR 5,the lien claimant ) should not assume their agreementor even their general contracted with Trac Developments on November 1, 2019 contractors agreementis the first one for the improvement.after the New Act came into effect. 6 To DNRs surprise, the Old Act applied. Their contract was not the first contract for the3. DONT TRUST THE WORDING OF THE CONTRACT ALONEimprovement. The owner had contracted with a constructionThe provisions of both the Old Act and the New Act are mandatory. manager prior to July 1, 2018, 7 and that contract counted asThat includes the transition provisions that determine whether the lienable services, which brought the improvement under theOld Act or the New Act applies. Sections 4 and 5 of the New Act OldAct. 8 are clear that non-compliant provisions of contracts are void, and 14THE OFFICIAL PUBLICATION OF THE ACCESS ASSOCIATION OF CANADA'