Two Work Sites Can Form One “Improvement” for Construction Lien Purposes

Bradley-Kelly Construction Ltd v GIP Construction Ontario East Ltd, et al involves a dispute that arose from the design and construction of Ottawa’s Trillium Line Extension project. Atkins as general contractor entered into a subcontract with GIP for work that included road reconstruction, park-and-ride facilities, paving, and emergency access roads. GIP subsequently entered into two sub-subcontracts with Bradley-Kelly: one for roadway lighting and traffic-light infrastructure associated with the widening of Earl Armstrong Road (the “EA Site”), and another for roadway lighting and electrical work at the New Walkley Yard (the “NWY Site”). As general contractor, Atkins retained a statutory holdback in connection with the work performed for the project.

Bradley-Kelly last performed work at the EA Site on December 27, 2023. It continued working at the NWY Site until January 25, 2024.

On February 15, 2024, Bradley-Kelly preserved separate lien claims for the work performed at each site. Pursuant to section 34 of Ontario’s Construction Act (the “Act”), since the work was located on publicly-owned lands, Bradley-Kelly preserved its claims by delivering Form 12 to the City of Ottawa. The liens did not attach to the land itself but instead applied to the statutory holdbacks and other amounts owing under the relevant construction contracts.

Bradley-Kelly argued that both sets of work formed part of a single improvement. On that basis, the lien-preservation period ran from January 25, 2024, when it last supplied services or materials to the overall improvement. Its February 15, 2024 lien was therefore timely.

Atkins argued that the two locations were separate improvements. Because Bradley-Kelly last worked at the EA Site on December 27, 2023, Atkins took the position that the applicable 45-day preservation period had expired before the lien was preserved.

What the Court Said

The Court ruled in Bradley-Kelly’s favour, finding that the work at both sites formed part of a single improvement and that the EA Site lien was therefore preserved on time.

The central question before the Court was what constituted the relevant “improvement” and when Bradley-Kelly last supplied services or materials to it. The Court explained that determining whether work relates to the same improvement requires a fact-specific inquiry. The key consideration is whether there is a sufficient connection between the work performed at the different locations to constitute a common effort. The Court emphasized that although an improvement may involve one or several contracts, the key consideration remains whether the work performed under those contracts was coordinated toward a common purpose or goal.

The Court relied on several factors supporting its conclusion that the two sites formed part of a single improvement:

• The project arose from one procurement process and one project agreement, with Atkins acting as the general contractor for the entire project under a single subcontract with GIP.
• Both of Bradley-Kelly’s subcontracts related to work on the project, and the same individual oversaw the work at both sites.
• The lands were connected through the light rail infrastructure, and the project could not operate until the work as a whole was completed and approved.
• Only one certificate of substantial performance had been published for the project and there was a single holdback fund under the GIP subcontract.

The Court rejected Atkins’ arguments for separate improvements because its position largely rested on the fact that the work occurred at different locations, on separate parcels of land, and that the EA Site lien described only that site.

The Court did not find that the existence of one contract or one project automatically determines the number of improvements. Rather, the existence of a single project agreement, general contract, subcontract, holdback fund, and certificate of substantial performance were all relevant factors in the broader factual assessment. The ultimate issue remained whether the services and materials supplied at the different locations were sufficiently connected and coordinated toward a common purpose.

The Court also considered the relationship between an “improvement” and the land on which the work is performed. Previous decisions have recognized that whether work is performed on the same or different lands is a factual issue. Work performed on separated and non-contiguous properties may support a finding that there are multiple improvements. In this case, however, the Court found that the lands were contiguous and formed part of a single, integrated light rail system. This supported the conclusion that Bradley-Kelly supplied its services and materials to the same lands and the same improvement.

Lastly, Atkins argued that Bradley-Kelly was required to preserve a general lien under section 20 of the Act to rely on work performed at multiple locations. The Court rejected this argument, finding that the work at both sites formed part of a single improvement. It further held that section 20 makes a general lien optional, not mandatory, as reflected in its wording “may choose”, and Atkins had not established that Bradley-Kelly was required to preserve a general lien in the circumstances.

Accordingly, section 20 did not apply, and Bradley-Kelly’s lien arose under the ordinary lien provision in section 14, and pursuant to section 16, the lien could not attach to “premises” because the land was owned by the Crown and/or was a railway right-of-way.  The lien was therefore a charge against the holdback pursuant to section 21 of the Act. 

Takeaways

The decision provides some important guidance for contractors and subcontractors working on projects that span multiple locations or involve separate contracts. Key takeaways include:

• Separate sites, scopes, or subcontracts do not necessarily create separate improvements or separate lien-preservation periods.
• The existence of one contract or one overall project is relevant but is not, by itself, determinative.
• Where work at multiple sites forms part of a single improvement, the lien period may run from the claimant’s last supply to the overall improvement.

Because lien rights are subject to strict statutory deadlines and the relevant improvement may not correspond neatly with a particular contract or location, it is always advisable to engage a lawyer if there are any uncertainties.

To ensure any proposed lien complies with the governing legislation, please contact Anthony Burden in Calgary, Ryan Krushelnitzky in Edmonton, or any member of Field Law’s Construction Group for guidance and assistance.

Link to decision: Bradley-Kelly Construction Ltd. v GIP Construction Ontario East Ltd. et al, 2026 ONSC 5180