The Construction Lien Act (the “Act”) has functioned reasonably well since its inception in 1983; however a number of significant developments have resulted in the need for its review and modernization.
As a result, the Ministry of the Attorney General and the Ministry of Economic Development, Employment and Infrastructure (the “Ministries”) have retained R. Bruce Reynolds as Counsel to conduct an expert review (the “Review”) of the Act (with Sharon Vogel acting as Co-Counsel to assist). This review will involve a review of the effectiveness of the Act in achieving its policy objectives, including addressing prompt payment issues and the effectiveness of dispute resolution under the Act.
The Review will undertake a thorough and comprehensive review in order to fulfill its instructions.
The purpose of the Review is to provide legal advice to the Ministries. The Review will be rendering an expert legal opinion to the Ministries.
The Review shall have intellectual independence in the performance of its mandate and preparation of its report. The intellectual independence of the Review will be fostered through independent research, and through consultations and dialogue with stakeholders. The Review will strive to build consensus with stakeholders.
There will be Three Phases of the Review as follows:
- the finalization of a complete stakeholder list;
- the research and preparation of a substantive issues list;
- the development of a questionnaire that will be focussed on the substantive issues under consideration (the “Review Questionnaire”); and
- the preparation of an information package (the “Information Package”) that will provide the background necessary for the stakeholders to participate meaningfully in the consultations in Phase 2.
- the distribution of the Information Package;
- the scheduling of a series of consultation meetings (the “Consultation Meetings”);
- the receipt of written submissions from stakeholders who wish to do so prior to their attendance before the Review. Any written submissions received from stakeholders will be made publically available upon request;
- a completion by the stakeholders of the Review Questionnaire; and
- the Consultation Meetings themselves.
Phase 3 will involve the writing and submission to the Attorney General and the Minister of Economic Development, Employment and Infrastructure of a Report, which will both report on the conduct of the Review and contain Mr. Reynolds’ expert legal opinion. The government will make the Report publically available promptly following its submission to the Ministers.
In carrying out the mandate, Counsel may request information from staff members of the Ministries and stakeholders.
The Review will rely on the cooperation of any individuals contacted, including the stakeholders, in that the Review does not have the legal authority to either compel individuals to provide information or produce documents.
The Review will deliver its report by the end of December 2015, subject to an extension, if necessary and approved by the Ministries.
Counsel and Co-Counsel will consult with stakeholders who have been identified by the Ministries and others who have self-identified as stakeholders.
The format of the meetings (face-to-face, teleconference, etc.) will be at the discretion of Counsel and Co-Counsel as necessary to undertake the Review in an effective and comprehensive manner. Face-to-face meetings will take place in Toronto, or in other location(s) as determined by Counsel and Co-Counsel, and approved by the Ministries.
Government employee(s) may attend meetings of the Review, at the invitation of Counsel, to provide support as may be needed and respond to questions from stakeholders that may arise.
The Review will create a small advisory group which will provide advice to the Review. Its members will consist of subject-matter experts, particularly in respect of legal issues. It will meet during Phase 2 and Phase 3 to further the discussion of issues of relevance and to identity opportunities for consensus building. The discussions of the Advisory Group will be confidential in nature to encourage open communication.
It is intended that the process and results of the Review are to be transparent, provided that (a) all legal advice, (b) all deliberations of the members of the Review, and (c) all deliberations of the Advisory Group are confidential.
As noted above, the submissions of stakeholders will be publically available upon request.