Now, knowing John as well as I do, I can virtually guarantee you that this is not the end, but rather the start of his next beginning.  I have no idea what that might entail, but am pretty sure neither does he right now, but more on that later.

John’s retirement has made me think about a lot of things.  How do you become successful in business?  How do you measure career success?  What really, truly matters in the end when one is ready to call it a career?   Now, I am not going to get all philosophical on you and talk about achieving success in life, although if I did, I could by using John as a shining example.   Rather, I would like to use John and his approach to work as a shining example for all those folks currently on their career paths, trying to figure out how to achieve success in business.  Gen’s X, Y, Z and Alpha take note.

• Be an expert. This word describes John to a tee.  John is an absolute expert in finance and accounting for insurance companies (brokers too).  He is also an expert in regulatory and industry issues surrounding the insurance industry.  John’s quest for continuous improvement and knowledge means that if John doesn’t know something, you can always count on him to find out the answer and fast.
• Love what you do. John has a life-long passion for the industry.  If you ask him, I bet you he would say he hasn’t really worked a day in his life!  I also bet he would suggest that if you don’t love what you do then keep on looking.
• Put in effort and work hard. Much easier to do if you love what you do!  If you look up the word “workhorse” in Webster’s, you will find John’s picture.  All kidding aside, John has been absolutely tireless in his approach to work and has always done more than his fair share.  He has always set the bar high.

So there you have it.  Be an expert, find something you love to do, and then put in the effort and work hard.  Nice and simple.  Do all three and I think you are well on your way to achieving career success.  I do however believe there is one more thing, and if you do this well in addition to the other three, your career success is a virtual certainty.

I am reminded of Maya Angelou’s quote when I think of John.  “People will forget what you said, people will forget what you did, but people will never forget how you made them feel”.

John is a true gentleman.  He has a kind and generous soul.  He does not possess a mean bone in his body.  He is an absolute gem of a human being.  I don’t know of anyone who doesn’t genuinely like him.

And he has always made us feel great.

Congratulations John and well done.  Thanks for showing us how to do it right.  Thank you for everything.  And the very best of luck in the next chapter of your success, whatever that may be.

Ringing in the Summer with Trisura

The Trisura House Party took place on May 30th, 2018, and was a lot of fun for everyone who attended. Renting out the Addison’s Residence for a night made for a less than typical industry cocktail mixer. What better way to ring in the summer with a backyard BBQ, a refreshing beverage in hand and some great conversation with some great people? We couldn’t have pictured it any better. It was great to catch up with all those who attended. Check out some snapshots of the evening below. See you next time!

One of the highlights of the changes are mandatory Performance Bonds and Labour and Material Payment Bonds (“L&M Bonds”) on all public projects using standardized bond forms which includes broad form L&M Bonds. Other changes include the timelines for filing liens, how substantial performance is achieved and the administration of construction trust funds.  Changes that will be implemented at a later date are prompt payment provisions and an adjudication regime.

The Construction Act is coming fast and will force all stakeholders in the Ontario construction industry to conduct certain aspects of their business differently.  There are many planned seminars and communications detailing the Construction Act and we encourage everyone to participate, understand the changes and be prepared.  Trisura would like to take this opportunity to highlight some of the most important aspects regarding surety bonding within the Construction Act.

Introduction of the changes in the Construction Act will be staggered, what are the timelines? 

• JULY 1, 2018 will introduce the modernization of the Construction Act, which includes mandatory bonding on all public projects.
• However, there will be a grandfathering for projects. If the procurement process (RFQ, RFP, tender, etc) began before July 1^st, 2018, the existing provisions under the Construction Lien Act will apply throughout the entire contract. If the procurement process begins after July 1^st, 2018, then the new provisions of the Construction Act will govern in its entirety. This means a contractor may potentially have several projects ongoing with completely separate statutory parameters to which they must comply.
• OCTOBER 2019 – Prompt Payment and Adjudication will take effect.

Will bonds be required on all public projects; Where can I get those forms?

• Yes – contractors entering into contracts with any public entity on projects with a contract price greater than $500,000 will be required to post at least 50% Performance and 50% L&M Bonds.
• The Construction Act applies to any project where an Improvement is made to the land, and is defined within the Construction Act.
• Historically, some government bodies such as the MTO did not require surety bonds. Under the Construction Act all contractors contracting with the MTO will be required to post 50% Performance and L&M bonds on all projects over $500,000.

What do I need to know about these new statutory Bond forms?

• The Act now standardizes the form of Performance and L&M Bonds to be used on all public projects in Ontario. While the bond forms are extensively longer than the current forms, they are meant to provide greater clarity and standardized forms for the surety claims process.
• Copies of these bond forms are posted on our website, or you can get a copy of the bonds here.

Mandatory response times of the Surety under the new bond forms:

• Acknowledgment of Performance Bond claims – The Surety will have 4 business days to acknowledge a Performance bond claim and request documents in the prescribed form.
• Surety’s position to a Performance Bond claim – The surety must provide its position to a Performance Bond claim within a very compressed time period of 20 business days from date of claim. In order for a surety to investigate and provide a written position within this time period, the surety will require a quick delivery of the contractor’s written position and supporting materials.
• Acknowledgment of L&M Bond Claims – the surety is required to acknowledge L&M Bond claims and request information within 3 business days.
• Surety’s position to a L&M Bond claim – the Surety must provide its written position to L&M Bond claims from the earlier of 10 business days after receiving information from the claimant (15 for second tier claimants) or 25 business days after the initial notice of the claim (35 for second tier claimants). The surety and claimant may mutually agree on a longer period.
• Payment – Under the L&M Bond, the Surety will have 10 days after providing its written position to pay any undisputed amounts.

Broad Form protection for second tier sub trades/suppliers:

• The new L&M Bond includes protection for “second tier” subcontractors (i.e. a subcontractor or supplier to a subcontractor of the prime contractor), much like the L&M Bonds required by the federal government.
• This will result in additional liability for the surety, as the prime contractor will now be responsible in a limited way for any non-payment of its subcontractors to their subcontractors and suppliers. A great strategy for a prime contractor to mitigate this risk will be to require Performance and L&M Bonds from their subcontractors in the same form as they have provided to the owner.

Pre-Notice Meeting and Post-Notice Conference

• The Performance Bond now prescribes that if the Owner requests a meeting or conference subject to the terms of the bond, the Surety must arrange this meeting with the Owner within 7 business days for a Pre-Notice Meeting and 5 business days for a Post-Notice Conference.

It is imperative that Brokers and Contractors are aware of these (and all) new timelines and have processes and protocols in place to deal with these requirements.  For Brokers, it will be imperative that any correspondence received from a Surety with respect to a claim be immediately forwarded to the Contractor.  For Contractors, strong project management documentation will become even more critical to respond to the requirements of potential surety bond claims and any requests for adjudication. Contractors must maintain one or more trust accounts and account for them on a per project basis. We strongly urge all contractors to reach out to their construction lawyers to ensure they are properly informed and advised.

The one question that frequently arises is “What happens if these deadlines are missed?”. At this time, the answer is unknown, as ultimately the courts will make that final determination and establish new precedents. However, it is certainly best for all parties not to be the test case in this unknown arena.

What are the timelines for liens under the Construction Act?

• There is a new formula for achieving Substantial Performance which will result in Substantial Performance being achieved earlier in the lifecycle of a project.
• For projects covered under the Construction Act, contractors will now have 60 days after Substantial Performance is published to preserve a lien. The time to perfect a lien by commencing an action will be extended from 45 days to 90 days from the last day the lien could have been preserved.
• Lien claims under $25,000 in value will now be referred to the Small Claims Court.
• The timelines apply to all contracts, public and private and for all levels of the construction pyramid.

Holdback:

• Under the Construction Act, holdback does not have to be retained as cash. If agreed to by all parties it can be retained via a Holdback Repayment Bond.
• For projects over $10,000,000 and an expected duration greater than 1 year, the parties have the option to release annually.
• If no lien claims exist, holdback is now required to be paid 60 days after publication of Substantial Performance unless a notice of non-payment of holdback is published.

Prompt Payment and Adjudication:

This will come into effect October 1, 2019. At this time, we only highlight these changes and will provide additional communication as time gets closer.

• Prompt Payment and Adjudication applies to all projects, public and private, and to all levels of the construction pyramid. Payment terms other than what is legislated will no longer be enforceable.
• Once a proper invoice is delivered, the Owner must pay the prime contractor within 28 days, unless they provide a written notice of non-payment within 14 days after receipt of the invoice outlining reasons why all or a portion of the invoice is not being paid.
• Once the prime contractor has been paid they must pay all subcontractors and suppliers within 7 days. This 7-day period to pay after receipt cascades down to all lower tier subtrades and suppliers within the construction pyramid.

As mentioned, there are many seminars being held and the following are several that are known at this time.  We would be happy to discuss these changes further with you and please don’t hesitate to reach out to any of our underwriters for more support.

We are ready, and want to help ensure you and your clients are too!

Surety Association of Canada webinar: June 19th, 10AM – 12PM EDT. Click here to register.

Surety Association of Canada webinar: June 20th, 10AM – 12 PM EDT. Click here to register.