The Ontario Government has amended its emergency order suspending limitation and procedural time periods retroactive to March 16, 2020 (the "Emergency Order") to clarify that the suspension does not apply to the Construction Act.
The Emergency Order, as originally drafted, was unclear as to whether the time periods to preserve and perfect construction liens were suspended by the Emergency Order.
Section 4 of the amended Emergency Order states:
- On and after April 16, 2020, sections 1 and 2 do not apply to provisions of the Construction Act or of the regulations made under it if the provisions establish a limitation period or period of time within which any step must be taken in a proceeding, including an intended proceeding ("Amendment").
Unfortunately, the Amendment fails to indicate whether lien preservation and perfection periods that expired between March 16, 2020 and April 16, 2020 are extended.
Prior to the release of the Amendment, the Attorney General of Ontario circulated a memorandum to the legal profession (the "Memorandum") on April 9, 2020, which advised that:
The suspension will be lifted on April 16, 2020, to give the industry time to prepare for these changes. Once lifted, parties will have the same amount of time to meet a deadline that had been remaining before the suspension began on March 16, 2020.
Since the Amendment does not expressly address the extension of lien preservation and perfection time periods, it is not clear as to whether lien preservation and perfection periods that expired between March 16, 2020, and April 16, 2020 are extended by the Amendment.
Accordingly, we recommend that:
1. Lien claimants continue to preserve and perfect their liens in accordance with the applicable deadlines set out in the Construction Act;
2. If a lien claimant believes that its lien perfection and/or preservation period expired between March 16 and April 16, 2020, then it should contact our office to discuss whether we may rely on the transition period set out in the Memorandum and/or perfect/preserve the lien on or before April 16, 2020; and
3. Where holdback may potentially need to be released and an owner believes that the period to preserve and/or perfect liens expired between March 16 and April 16, 2020, that the owner contact our office to discuss the timing of the release of the holdback and review the potential impact of the discrepancy between the Amendment and the Memorandum.
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