On May 17, 2010, the Ontario Government introduced Bill 68, “An Act to promote Ontario as open for business by amending or repealing certain Acts” in the Ontario Legislature. As it is referred to by its short title, the “Open for Business Act, 2010” proposes amendments to 45 Ontario statutes which if passed, would create a more competitive business climate, while protecting the environment and public interest. There are over 100 proposed amendments and these proposed amendments would harmonize Ontario’s business practices with other North American jurisdictions. For example, amendments are proposed to the Business Names Act, the Personal Property Security Act, the Construction Lien Act and the Employment Standards Act, 2000.

The proposed changes to the Business Names Act will provide a right to compensation to a person who suffers damages because of the registration of a name that is the same as or deceptively similar to the person’s name, even though the person’s name is not required to be registered under the Business Names Act. Damages would be limited to the greater of $500 or the actual amount of damages incurred.

The purpose of this proposed amendments is to permit corporations to object to similar business names through an expeditious procedure in small claims court rather than through complex and costly legal proceedings in the Superior Court of Justice or Federal Court, resulting in both time and cost savings for businesses.

The proposed changes to the Personal Property Security Act focus on the definition of a “purchase-money security interest” or “PMSI” for short. The definition of a PMSI is being amended to exclude a transaction of sale by and lease back to the seller.

The time period within which secured creditors with a PMSI in certain types of collateral (goods other than inventory and intangibles) must register under the Personal Property Security Act to obtain priority over other creditors is extended from 10 to 15 days. In the case of goods, the time period begins after the debtor obtains possession of the goods. In the case of intangibles such as accounts receivables, the time period begins after the security interest is created.

The Ministry of the Attorney General has proposed various amendments to the Construction Lien Act which would allow for the electronic filing of a claim for lien and make it easier for a lien claimant to lien an entire condominium. Subsection 1(1) of the Construction Lien Act would be amended by updating the definition of “homebuyer” and by re-enacting the definition of “improvement”. A new provision is added to the Construction Lien Act to require that owners of land intended to be registered in accordance with the Condominium Act, 1998 to publish notice of the intention to register in a construction trade newspaper. An owner who fails to do so in accordance with the section is liable to any person entitled to a lien who suffers damages as a result. The Construction Lien Act is also being amended to remove the requirement to verify a claim for lien by affidavit. As a result, subsection 40(1) of the Construction Lien Act is amended to add to the list of persons who may be cross-examined with respect to a claim for lien. Finally subsection 44(9) of the Construction Lien Act is amended to provide that a lien claimant whose lien is sheltered under a lien that is vacated by order under the section may proceed with an action to enforce the sheltered lien as if the order to vacate had not been made.

The proposed amendments to the Construction Lien Act would, if passed:

• help ensure that courts are only involved in construction disputes when needed by broadening the definition of “improvement”;
• clarify the lien process for condominiums and the right to cross examine those who have registered liens; and
• protect the rights of claimants with sheltered liens, regardless of whether the original lien has been dealt with or resolved.

The Ministry of Labour is proposing significant amendments to the Employment Standards Act, 2000 that would:
• allow the Director of Employment Standards to require claimants to provide specific information and let their employer know about their Employment Standards complaint before the claim is assigned to an officer.
• authorize employment standards officers to attempt settlements of complaints.
• allow officers to make decisions on clams when parties fail to attend decision-making meetings or provide evidence on time.

These amendments support the Ministry of Labour’ initiative to advance fairness in the workplace and modernize its Employment Standard programs by launching a task force in August 2010 to eliminate the backlog of 14,000 claims in two years. It will also allow the development of the new online severance pay decision tool for employers and employees. And assist in the future launch of a termination of employment/temporary layoff tool that determines when a layoff becomes a termination, the termination date and any termination pay owing.

Right now the ball is in the hands of the Ontario Legislature as they debate the pros and cons of the proposed legislation. I will be following these developments to see if Bill 68 becomes law in the near future.

Marcia A. Green is a lawyer at Brazeau Seller LLP. She practices in the area of commercial litigation. Marcia can be reached at 237-4000 ext. 228 or by e-mail [email protected].