b'toallpartiesworkingonanlien rights. 9 By finding that theParties should not assume their agreementor improvement. 3 services of a pure construction WhethertheOldActormanagerqualifiedforlien the New Act applies dependsrights inDNR, the Court has on the timing of the first pro- shownacleardesiretocastaeven their general contractors agreementis the curementprocessforanim- wide net with its interpretation provement.Aprocurementof what is a qualifying contract processstartswiththeearli- fortheimprovement.Thisfirst one for the improvement.est request for qualifications,considerationimpactswhether quotations,proposalsorcalltheOldActortheNewAct fortenders. 4However,theapplies,becauseanexpansive short window to place a liendefinitionofcontractforthe may not provide enough timeimprovement could cause the for a contractor to determineOld Act to apply by capturing whentheprocurementearly-stage agreements that pre-processstarted. date July 1, 2018 (e.g. contracts In many cases, that infor- forplanning,architecturalde-mation may not be availablesigns or site clearing).tothecontractoruntilwellThestatutorydefinitionof afterlitigationisunderway.improvement is often broader Wehaveseenseveralcasesthantheconventionaldefini-wheretheprocurementpro- tion of a construction project. cess began with private emailAn improvement comprises any exchanges between an owneralteration, addition or repair to andanotherparty.Nolientheland,oranyconstruction, claimantcouldhaveknownerectionorinstallationonthe aboutthemwhenplacingland, or any building structure theirlien.Thetakeawayisor works on the land. 10 A party that the procurement processwould be taking on significant likely started earlier than oneriskbyassumingthatany maythink,andso,whenincontractspre-datingJuly1, doubt, it is prudent to assume2018,wereunrelatedtothe there are only 45 days to lien. project that the party was hired 2.When in doubt,tocomplete.TheCourtmay assume you are not thewellfindthatthepre-existing contracts and the project were first contract for theallpartofoneimprovement. improvement And if they were all related to Evenifthereisnopro- one improvement, then the Old curement process and a partyAct likely applies.entered into their contract inA cautious approach is war-2023, the Old Act may applyranted, as the existing and tim-if there is another contract foringofpre-existingagreements thesameimprovementthatisunlikelytobeknownby came earlier. subcontractorsorotherpar-Partieshavelearnedthisties engaged at a later stage of lesson the hard way. InDNRthe project. Parties should not Restoration Inc. v. Trac Devel- assumetheiragreementor opmentsInc.(DNR), 5theeventheirgeneralcontractors lienclaimantcontractedagreementis the first one for withTracDevelopmentsontheimprovement.November 1, 2019after the New Act came into effect. 6 To3.Dont trust the DNRssurprise,theOldwording of the contract Actapplied.TheircontractalonewasnotthefirstcontractThe provisions of both the fortheimprovement.TheOld Act and the New Act are owner had contracted with a constructionmanagerpriormandatory.Thatincludesthe toJuly1,2018, 7andthattransition provisions that deter-contractcountedaslien- mine whether the Old Act or the ableservices,whichbroughtNew Act applies. Sections 4 and theimprovementunderthe5 of the New Act are clear that OldAct. 8 non-compliantprovisionsof DNR isalsonotablecontracts are void, and Courts becauseittakesabroadwillamendandinterpretcon-interpretation of the concepttractstoconformtotheNew ofacontractfortheAct. 11 As a result, a party cannot improvement. BeforeDNR,choose which version applies by therewasuncertaintyaboutsimplystatinginthecontract when a construction manag- that the New Act applies, rather ers services would qualify forthan the Old Act.ORN THE ONLY SOURCE FOR PROFESSIONAL ICI ROOFING CONTRACTORS IN ONTARIO ONTARIO ROOFING NEWSISSUE 3 202315'