RC104 JanFeb2023 - Magazine - Page 33
ALBERTA
NEW BRUNSWICK
On August 29, 2022, Bill 37: Builders Lien
(Prompt Payment) Amendment Act 2020
came into force, which prescribes
timelines and rules for payment and
liens in the construction industry and introduces the
province’s new Prompt Payment and Construction Lien Act.
Alberta’s new legislation provides a 28-calendar day
timeline for an owner to pay a contractor after receiving a
proper invoice. However, if an owner disputes a proper
invoice, the owner may provide notice of dispute, which
includes reasons for non-payment to the contractor within
14 calendar days after receiving the invoice. After it
receives the funds from the owner, the contractor is then
required to pay its subcontractors within seven days.
Alberta’s new legislation also introduces streamlined
adjudication governed by a yet to be named or assigned
Nominating Authority. The Prompt Payment and Construction Lien Act permits a party to a contract or subcontract
to refer a dispute to adjudication, so long as no party has
commenced an action in court with respect to a dispute.
The new regulations detail the matters that can be adjudicated, including valuation of services under a contract,
including a proposed change order; payment under the
contract or subcontract; and disputes that are subject to a
notice of non-payment.
Despite the public and industry interest
in prompt payment legislation, the
province of New Brunswick has yet to
introduce prompt payment or adjudication legislation to the province.
In July 2019 and April 2020, the Legislative Services
Branch of the Office of the Attorney General of New
Brunswick issued law reform notes targeted at possible
reform of the Mechanics’ Lien Act by modernizing the
existing legislation as well as introducing prompt payment
and adjudication mechanisms in two distinct phases. In
the first of these two phases, the Construction Remedies Act
as well as the related Regulation 2021-81 came into force
on November 1, 2021, and include modernization of lien,
holdback, and substantial performance provisions of the
existing legislation.
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NOVA SCOTIA
In Nova Scotia, though it received royal
assent on April 12, 2019, Bill 119:
Builders’ Lien Act (Amended) never came
into force. Most recently on October 18,
2022, the province of Nova Scotia introduced new legislation, which is aimed at “making sure that members of the
construction industry are paid promptly for the work they
do.” As of the time of writing, the further amended
Builders’ Lien Act passed its Second Reading on October 19,
2022 and is scheduled to appear before the Law Amendments Committee and Committee of the Whole House
before it proceeds to Third Reading.
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FEDERAL
At the federal level, though not yet in
force, the Federal Prompt Payment for
Construction Work Act received royal asset
on June 21, 2019. This federal legislation
creates a prompt payment regime for public construction
projects at the federal level. This is substantively similar to
those in the province of Ontario, by using receipt of a
“proper invoice” as the trigger for the payment scheme,
which is enforced by adjudication. The regulations related
to this legislation are still under development.
Conclusion
Various provinces across Canada have, or are in the
process of, implementing prompt payment and adjudication regimes in an effort to facilitate timely payment
throughout the construction pyramid. It is increasingly
clear that prompt payment and adjudication mechanisms
are changing the construction landscape in Canada, and
we look forward to continuing to follow the progressive
change to our industry.
JANUARY/FEBRUARY 2023 — RENEW CANADA 33
