Ontario's Construction Lien Act
Sun/12/2012 16:03 Filed in: Real Estate | Civil Litigation
Individuals who choose to construct their own homes as the “builder” should be aware of the special obligations created by Ontario’s Construction Lien Act.
The Construction Lien Act is legislation that helps to ensure that contractors, subcontractors and workers are paid for the labour and materials supplied in the course of construction and building projects.
Generally, contractors who do not receive payment for their work have 45 days to register a lien against the property. They are then required to initiate a proceeding in court to sustain the lien.
If a contractor hired by a builder invokes the Construction Lien Act, both sides would be required to file pleadings (Statements of Claim and Defence) and attend a mediation/settlement conference. If no resolution is forthcoming, a judge will decide the merits of the claim.
If a Construction Lien Act matter arises, progress advances under a construction mortgage will likely come to a halt until the matter is resolved. This can delay a home construction project if a builder does not otherwise have access to funds to complete the work.
The Construction Lien Act also imposes other obligations on property owners. For example, the Act requires that a percentage of project funds be held back until subcontractors are paid and requires that project funds not be diverted for other purposes (i.e. another construction project).
The Construction Lien Act sometimes comes into play when a builder and contractor have a dispute over the quality of materials or workmanship. A builder who is not satisfied with the quality of materials or workmanship is faced with the prospect of significantly delaying their project if the contractor is not paid in accordance with the construction contract. Despite the protection afforded to contractors in the Construction Lien Act, contractors are required to carry out work using appropriate materials and workmanship.
Time-consuming and costly Construction Lien Act litigation can be averted by ensuring that the builder and contractor execute clear and unambiguous construction contracts which provide for alternative dispute resolution in the event of a disagreement between the builder and contractor.
In considering the construction of a new home, builders must be aware that construction contracts are a special breed of contract because of the implications of the Construction Lien Act.
The Construction Lien Act is legislation that helps to ensure that contractors, subcontractors and workers are paid for the labour and materials supplied in the course of construction and building projects.
Generally, contractors who do not receive payment for their work have 45 days to register a lien against the property. They are then required to initiate a proceeding in court to sustain the lien.
If a contractor hired by a builder invokes the Construction Lien Act, both sides would be required to file pleadings (Statements of Claim and Defence) and attend a mediation/settlement conference. If no resolution is forthcoming, a judge will decide the merits of the claim.
If a Construction Lien Act matter arises, progress advances under a construction mortgage will likely come to a halt until the matter is resolved. This can delay a home construction project if a builder does not otherwise have access to funds to complete the work.
The Construction Lien Act also imposes other obligations on property owners. For example, the Act requires that a percentage of project funds be held back until subcontractors are paid and requires that project funds not be diverted for other purposes (i.e. another construction project).
The Construction Lien Act sometimes comes into play when a builder and contractor have a dispute over the quality of materials or workmanship. A builder who is not satisfied with the quality of materials or workmanship is faced with the prospect of significantly delaying their project if the contractor is not paid in accordance with the construction contract. Despite the protection afforded to contractors in the Construction Lien Act, contractors are required to carry out work using appropriate materials and workmanship.
Time-consuming and costly Construction Lien Act litigation can be averted by ensuring that the builder and contractor execute clear and unambiguous construction contracts which provide for alternative dispute resolution in the event of a disagreement between the builder and contractor.
In considering the construction of a new home, builders must be aware that construction contracts are a special breed of contract because of the implications of the Construction Lien Act.
Pets and Condos
Sat/12/2010 20:42 Filed in: Real Estate
Can an owner or tenant of a condominium unit have a pet?
It depends.
To find out whether pets are allowed, check out whether the condo has any rules prohibiting pets or restricting pet size. You can refer to the Declaration, Rules or Bylaws of the condo corporation for this information. Prohibitions and restrictions placed on pets by a condo corporation are generally valid (in contrast to bans in apartment buildings). See, for example, this case.
Restrictions usually address the types of pets allowed and size (especially for dogs), as well as the use of leashes, faeces and noise.
Even if your building is "pet friendly" (allows pets) it’s unlikely that you’d be able to keep a pet for long if it creates too much of a disturbance for other occupants. In many cases, the Declaration, Rules and Bylaws in a pet friendly condo will address pets that create a nuisance. For example, the rules might say something like this:
"No owner or occupant of any residential unit shall maintain, keep or shelter any animal, livestock or fowl therein other than a household pet as herein defined For the purpose of this restriction upon the use and occupation of residential units, the term “household pet” shall mean a caged bird, aquarium fish, one (1) domestic cat or one (1) dog not exceeding forty (40) pounds in weight with the sole exception of a guide dog within the meaning of the Blind Person's Rights Act (Ontario) which guide dog may exceed such weight limit, and unless any such household pet becomes a nuisance and causes unreasonable interference with the use and enjoyment by owners of other residential units and the common elements, in which event the Corporation may require the pet owner to permanently remove such pet from the property upon two (2) weeks written notice." (emphasis added)
Put simply, pet owners should refer to the Declaration, Rules and Bylaws to determine whether pets are allows. If you’re a tenant, your landlord would probably have a copy of these documents, or you can get them from the property management office.
What do I do if another occupant’s pet is disturbing me?
If the owner isn’t cooperative, keep detailed notes of any disturbances from the pet. If the condo has a security guard, have them record incidents of excessive noise, etc.
Refer to the Declaration, Rules and Bylaws to find out if pets are allowed or whether there are any restrictions. If pets aren’t allowed, you’ll have a pretty clear case. Even if pets are allowed, the fact that the pet is disturbing your quiet enjoyment of your unit could be cause for action.
The condo’s Board of Directors is responsible for upholding the Declaration, Rules and Bylaws. Find out who sits on the Board and take your complaint to them and the property manager (or have your landlord do so if you’re a tenant). Try getting in touch with the occupants who live above or beside the pet owner and work together with them.
If you have problems with the Board, you will probably have to push back to have them enforce the rules. Again, the Board is responsible for upholding the condo's rules so check the Declaration, Rules and Bylaws first.
It’s also worth noting that the Board might have created rules prohibiting or restricting pets at a certain point in time and that any pets that lived in the building prior to the rule change could have been allowed to stay.
If you’re a tenant, another avenue for addressing noisy pets would be your lease. You're paying rent and are entitled to quiet enjoyment of your unit. Speak to a tenant rights organization to find out what you can do.
The City of Toronto also has a municipal bylaw regarding noise that you might want to consult in addition to the above options.
Please contact us for more information.
It depends.
To find out whether pets are allowed, check out whether the condo has any rules prohibiting pets or restricting pet size. You can refer to the Declaration, Rules or Bylaws of the condo corporation for this information. Prohibitions and restrictions placed on pets by a condo corporation are generally valid (in contrast to bans in apartment buildings). See, for example, this case.
Restrictions usually address the types of pets allowed and size (especially for dogs), as well as the use of leashes, faeces and noise.
Even if your building is "pet friendly" (allows pets) it’s unlikely that you’d be able to keep a pet for long if it creates too much of a disturbance for other occupants. In many cases, the Declaration, Rules and Bylaws in a pet friendly condo will address pets that create a nuisance. For example, the rules might say something like this:
"No owner or occupant of any residential unit shall maintain, keep or shelter any animal, livestock or fowl therein other than a household pet as herein defined For the purpose of this restriction upon the use and occupation of residential units, the term “household pet” shall mean a caged bird, aquarium fish, one (1) domestic cat or one (1) dog not exceeding forty (40) pounds in weight with the sole exception of a guide dog within the meaning of the Blind Person's Rights Act (Ontario) which guide dog may exceed such weight limit, and unless any such household pet becomes a nuisance and causes unreasonable interference with the use and enjoyment by owners of other residential units and the common elements, in which event the Corporation may require the pet owner to permanently remove such pet from the property upon two (2) weeks written notice." (emphasis added)
Put simply, pet owners should refer to the Declaration, Rules and Bylaws to determine whether pets are allows. If you’re a tenant, your landlord would probably have a copy of these documents, or you can get them from the property management office.
What do I do if another occupant’s pet is disturbing me?
If the owner isn’t cooperative, keep detailed notes of any disturbances from the pet. If the condo has a security guard, have them record incidents of excessive noise, etc.
Refer to the Declaration, Rules and Bylaws to find out if pets are allowed or whether there are any restrictions. If pets aren’t allowed, you’ll have a pretty clear case. Even if pets are allowed, the fact that the pet is disturbing your quiet enjoyment of your unit could be cause for action.
The condo’s Board of Directors is responsible for upholding the Declaration, Rules and Bylaws. Find out who sits on the Board and take your complaint to them and the property manager (or have your landlord do so if you’re a tenant). Try getting in touch with the occupants who live above or beside the pet owner and work together with them.
If you have problems with the Board, you will probably have to push back to have them enforce the rules. Again, the Board is responsible for upholding the condo's rules so check the Declaration, Rules and Bylaws first.
It’s also worth noting that the Board might have created rules prohibiting or restricting pets at a certain point in time and that any pets that lived in the building prior to the rule change could have been allowed to stay.
If you’re a tenant, another avenue for addressing noisy pets would be your lease. You're paying rent and are entitled to quiet enjoyment of your unit. Speak to a tenant rights organization to find out what you can do.
The City of Toronto also has a municipal bylaw regarding noise that you might want to consult in addition to the above options.
Please contact us for more information.
Consequences of Backing out of an Agreement of Purchase and Sale
Thu/11/2010 19:45 Filed in: Real Estate | Civil Litigation
Sometimes a buyer is unable to complete the purchase of a property after signing the Agreement of Purchase and Sale.
Since the Agreement of Purchase and Sale is a legally binding contract there are a number of possible considerations that a buyer should consider in these circumstances.
The Deposit
The Agreement of Purchase and Sale may directly address what happens to the deposit if the buyer defaults. If the Agreement of Purchase and Sale does not address this issue, a court will likely find that the seller is within his or her right to keep the deposit amount.
Damages
If the matter went to court, the buyer who backed out of a deal after signing the Agreement of Purchase and Sale could be required to compensate the seller for expenses that he or she incurred because of the buyer backing out of the deal.
This could include the costs of having to put the property back on the market, moving expense and other immediate expenses that the seller incurred because of the buyer’s default.
The buyer could also be liable for a host of other expenses incurred by the seller. For example, if the seller agreed to buy another property on the basis of having sold his or her existing home, the defaulting buyer may be liable for the deposit amount and any other expenses incurred as a result of the seller having to back out of this subsequent purchase.
Although a court is unlikely to order the buyer to complete the transaction (compel the buyer to purchase the house), a defaulting buyer could have to pay the seller thousands of dollars if, for example, the seller is unable to find a buyer and is forced to sell the house at a lower price.
Conclusion
The Agreement of Purchase and Sale is a legally binding contract and a buyer should only make an offer to purchase if they are certain about their ability to close the deal.
How can a Criminal Record Hurt your Job Prospects?
Sat/11/2010 12:21 Filed in: Labour and Employment | Human Rights
Having a criminal record can significantly hurt your ability to work in a given position.
What is a Criminal Record?
When an individual is convicted of a criminal offence, it is recorded in a “criminal record”. The record is stored in a RCMP database called the Canadian Police Information Centre (CPIC) and is accessible to law enforcement agencies in Canada and border security officials in Canada and other countries.
In addition to the information stored in the CPIC, local police forces usually maintain their own databases that contain information about pending charges, charges that resulted in an acquittal, an investigation involving you, your involvement as a witness, complaints against an individual by others (including complaints about domestic abuse) and notes about any contact you might have had with the police. The information in a local police force database depends on what information the particular force records, which varies by police force.
What is a Criminal Record Check?
A criminal record check (also known as police records check, police background check, criminal background check, criminal reference check, etc.) produces a report from police databases. As one might expect, the information in a criminal record check would include information about the individual’s criminal record from the CPIC (criminal convictions). However, since criminal record checks are performed through a local police force (such as the Toronto Police Service) a police background check may also include a wide range of additional information from the database of the local police force. Whether the police force provides information in addition to criminal convictions depends on the policies and practices of the force itself and whether disclosure is required by law (necessary for some professions, described below).
Criminal Record Checks and Employment
An employer cannot have a criminal record check performed without your consent. Many employers ask that prospective employees and volunteers consent to a criminal record check. In some industries, having a check performed prior to employment is actually required be law. These occupations include government employees, teachers, police officers, nuclear power plant employees, nurses, bank employees, financial advisors, couriers, security guards, casino employees, taxi or limousine drivers, collection agency employees, funeral directors and truck drivers.
Typically, a criminal record check is performed after a job candidate is deemed otherwise qualified. An offer of employment is made on the condition that result of the criminal record check does not render them unsuitable. Applicants may refuse to consent to a criminal background check, however the hiring organization would be within its right to withdraw the offer of employment.
An employer may use the record of an applicant’s prior criminal offence to refuse to hire him or her. However, according to the Ontario Human Rights Code, an employer may not make a hiring decision on the basis of a pardoned criminal offence or a provincial offence (traffic ticket or municipal bylaw offence). As discussed above, criminal background checks may include information about any contact with police.
In addition to pardoned criminal offences and provincial offences, a person with a mental illness may come into contact with the police under provisions of the Mental Health Act. If revealed by a criminal background check, this information cannot be used by an employer to make a hiring decision. To do so would be contrary to the Ontario Human Rights Code’s prohibition on discrimination on the basis of disability.
How else can a Criminal Record Hurt Me?
A criminal record may seriously jeopardize an application for Canadian citizenship, entrance to a regulated profession (dentistry, medicine, accounting, law, etc.) or international travel.
Obtaining a Pardon
Once you are convicted of a criminal offence, a record will permanently appear in the CPIC, unless you obtain a pardon. Pardons fall under the jurisdiction of the Parole Board of Canada.
If convicted of a summary offence (less serious crime) other than a sexual offence, you can apply for a pardon three (3) years after serving the sentence (including probation). So long as certain conditions are met, a pardon will usually be granted.
If convicted of an indictable offence (more serious crime) or a summary sexual offence, you must wait for five (5) years after serving the sentence (including probation) to apply for a pardon.
If convicted of a personal injury offence where a sentence of two or more years was imposed or an indictable sexual offence, you must wait for ten (10) years after serving the sentence (including probation) to apply for a pardon.
After applying for a pardon, it may take months or years before a decisions is reached. An application for a pardon may be denied as the decision to grant a pardon is ultimately the discretion of the Parole Board of Canada. If a pardon is granted, the criminal record is not destroyed. Instead, it is kept separate from the records of non-pardoned criminal convictions. Once granted, a pardon may cease to have effect if, for example, the individual is subsequently convicted of an indictable offence.
You do not need to apply for a pardon if you have received an absolute or conditional discharge after July 24, 1992. A discharge occurs when there is a finding of guilt by the court, but the accused is deemed not to have been convicted. A conditional discharge will be automatically removed from CPIC three years after the court decision, while an absolute discharge will be automatically removed after one year.
Enhanced Criminal Background Checks
Employers who hire workers to work with vulnerable members of society (children, seniors, mentally disabled, etc.) may perform criminal background checks which show sexual offences, including sexual offences that have been pardoned. Enhanced checks are meant to provide the highest level of protection to vulnerable people.
Other Precautions
When travelling with a criminal conviction that has not been pardoned, it is possible for the border services officers of other countries to make records of the conviction and retain these records on their databases even after a pardon is granted by the Parole Board of Canada.
Keep in mind that a pardon only applies to the information in the CPIC database and that the information in a local police force database will not be removed by a pardon.
For additional information on obtaining a pardon, hiring practices or criminal records, please contact us.
Creating a Website for your New Practice
Starting a law practice requires having a website.
Apart from giving clients your contact information and a bit of information about the services you provide, a website can also include a plethora of resources to help people resolve their legal problems or recognize the need for a lawyer. Although word-of-mouth is still the greatest source of clients for most Ontario lawyers, it goes without saying that web-marketing is also an important way to attract new clients. A website is really only one piece of developing a strong “web-presence”, which can also include podcasts, blogs, and facebook and twitter accounts, among other things.
I chose to create my own site rather than pay to have one made by a professional web designer. It isn’t as difficult as one might think, especially with the help of a good web-editor and the willingness to set aside your free time for a few weeks/months to develop the content and design of the site. For this site, I’ve been using Rapidweaver on an Intel-based Macbook. There are still a few bugs, but having created this site from square-one means that I’m usually able to modify the design and navigation with relative ease.
Here’s a few lessons that I’ve learned while developing this site:
I’m always happy to share more about my experiences in web design and starting out as a lawyer -- if you’re a lawyer or other professional starting a practice and/or website, please feel free to contact us.
Apart from giving clients your contact information and a bit of information about the services you provide, a website can also include a plethora of resources to help people resolve their legal problems or recognize the need for a lawyer. Although word-of-mouth is still the greatest source of clients for most Ontario lawyers, it goes without saying that web-marketing is also an important way to attract new clients. A website is really only one piece of developing a strong “web-presence”, which can also include podcasts, blogs, and facebook and twitter accounts, among other things.
I chose to create my own site rather than pay to have one made by a professional web designer. It isn’t as difficult as one might think, especially with the help of a good web-editor and the willingness to set aside your free time for a few weeks/months to develop the content and design of the site. For this site, I’ve been using Rapidweaver on an Intel-based Macbook. There are still a few bugs, but having created this site from square-one means that I’m usually able to modify the design and navigation with relative ease.
Here’s a few lessons that I’ve learned while developing this site:
- Having user-friendly navigation is essential: early on, I was using another editor (iWeb), which didn’t easily allow for the creation of collapsible navigation menus. After creating more than a small handful of pages, the importance of a collapsible navigation sidebar became obvious and prompted a switch to Rapidweaver.
- Create a blog: blogging is a great way to add content to your site and share interesting information and experiences with other lawyers and readers. It’s also a good way to stay on top of developments in your practice area. When I hear about an interesting decision or concept, I add it to a growing list of items to research and blog about.
- Test your site in different browsers: in different browsers, the text and other elements of the page will show differently. Make sure you’re using web-safe fonts. Experiment with different layouts too, as a theme or layout may turn out slightly different in each browser.
- Don’t use legalese: even if some of your pages and blog-posts are intended for an audience of lawyers, using plain English will help make your site more accessible for everyone. If you need to use a technical term, include a definition. You could also include a glossary, such as this real estate law glossary.
- Avoid excessive sales pitches: if your site or blog posts are styled as information resources, it’s probably a turn-off to include things like testimonials, examples of your successful decisions and other promotional content. People are usually more likely to read and share your articles and blog posts if they include useful information on practical issues rather than blatant self-promotion.
- Use your site to differentiate your practice: although your site should not glare of self-promotion, it should be part of an overall marketing strategy that is designed to differentiate your practice from other law firms. Although how you do this is a matter of personal choice and business strategy, your website can help establish an identity and offering of services that sets you apart from other lawyers in your practice area. Easier said than done, of course.
- Optimize your site for search engines: so far, this has been the most difficult part of creating a website. Optimizing your site for search engines (known in the industry as Search Engine Optimization (SEO)), is about creating your site so that search engines, such as Google, Yahoo and others, display your site at the top of the hit list when someone searches for particular keywords (i.e. “North York employment lawyer”). SEO is difficult because search engines don’t disclose how they determine which sites show up first in a keyword search. To do so would allow unscrupulous developers to exploit the search engine’s method so that irrelevant (i.e. advertising-laden) sites appear as the top hits. Thankfully, there is a healthy community of website designers who are willing to share their thoughts and experiences about optimizing their own legitimate sites. Although I’m still a novice, learning and contributing to this community has been a particularly interesting part of my web design experience.
I’m always happy to share more about my experiences in web design and starting out as a lawyer -- if you’re a lawyer or other professional starting a practice and/or website, please feel free to contact us.
