December 15, 2010
By Robert Kennaley
McLauchlin & Associates

Robert KennaleyMy, how time flies. Our law firm first became members of Landscape Ontario in 1998, and I first wrote a column for Horticulture Review in March of 1999. Since that time, we have covered many a legal, contractual and practical issues in this space. We have watched your industry grow and, along the way, watched contractors, designers, consultants and suppliers become more professional, more sophisticated, more risk-management-savvy and more active in pursuing the opportunities and benefits which a vibrant trade association can provide.

We believe Horticulture Review has played, and continues to play, an important part in bringing important information, advice and feedback to Landscape Ontario members. I am happy to have been a part of that process over the last 11 or 12 years. While we will continue to be active readers of Horticulture Review in the future, however, it has been decided that this column will move to a different publication, Landscape Trades, effective Jan. 1, 2011.

Our column will continue to be available to you, the Horticulture Review reader, as Landscape Trades is also published by Landscape Ontario. The move is being made because Landscape Trades will expose our column to more readers, in that it is a national publication with broader circulation. We will still provide articles to Horticulture Review on regionally specific topics, from time to time. In the meantime, we hope you will look for us in Landscape Trades.

With the remainder of this last regular column, I’d like to reminisce on what I have seen happening at Landscape Ontario over the last 10 years or so. I think Landscape Ontario and its members need to be credited with individually, and collectively, making great strides with respect to risk and business management, and in protecting and advancing the interests of the landscape and horticulture industries. A few examples might help to illustrate where I am coming from.

I remember that, 10 or more years ago, Terry Murphy put panels together for Congress, comprised of representatives of the Ministry of Transportation, the Ministry of Labour, WSIB, lawyers and experienced contractors. The goal was to provide information about legislative requirements, expectations and consequences in relation to trucks, trailers, occupational health and safety, WSIB, and employment relationships and standards. More importantly, the program called for an extensive question and answer portion, allowing participants to pick the brains of those governing the areas in question. Surprisingly, the sessions were not very well attended.

Since that time, however, more and more members have begun to take their responsibilities in this regard very seriously, as evidenced by the participation in LO’s seminar programs, safety groups and committees, etc. As an organization, LO has made great strides in clarifying and reducing member obligations, for instance with respect to WSIB standard form contracts in various regulatory reforms.

We have also seen, over the years, a significant improvement in the way Landscape Ontario members have addressed contractual issues and liability. Gone for the most part, hopefully, are the days when Landscape Ontario members would enter strictly oral contracts, or (perhaps worse-yet) written contracts which were vague or ambiguous or categorically unfair. We have seen members become increasingly (and properly) concerned to ensure they have good contracts in place. We have also seen LO take a lead role in that regard, through the drafting of standard form contracts and through offering educational seminars.

In addition, we have seen the profile of the industry increase over time. Whether they be contractors, consultants or suppliers, members are individually and collectively working in their communities to enhance the professional nature of their industry. This is reflected for example in the fact that many commercial construction contracts now call for the landscape subcontractors to be pre-qualified. In addition, bonding requirements in relation to landscape contracts are becoming more and more prevalent. All of this speaks to the fact that the landscape and horticulture industry is becoming increasingly recognized as an important and sophisticated sub-set of the province’s construction industry as a whole. This, in our view, is in large part due to the dedication and hard work of Landscape Ontario’s members, working independently and as a group, and to the efforts of Landscape Ontario itself.

There is, of course, much to be done. Many members and non-members alike continue to run risks and assume liabilities that they might be better off avoiding. We can always do better to educate participants in the landscape and horticulture industries, and to collectively continue to enhance the professional profile of these industries.  In that regard, we hope you will continue to look for articles in Landscape Trades. In the meantime, it has been a pleasure sharing this space with you over the last number of years.
Robert Kennaley practices construction law in Toronto and Simcoe. He speaks and writes regularly across North America. He can be reached for comment at 416- 368-2522, or at This material is for information purposes and is not intended to provide legal advice in relation to any particular fact situation. Readers who have concerns about any particular circumstance are encouraged to seek independent legal advice in that regard.