Miscellaneous Requirements of the July 1, 2018 Changes:
contractors and subcontractors will now be entitled to make much more enhanced requests for information under s.39 of the Act. The information available through such a request will be invaluable the assessment and management of risk and in helping parties to protect their interests, meet their obligations and get paid. The new scope of requests include:
- much more detailed status of accounts from those above you in the pyramid;
-information about the sale of a home (given the protection home buyers have against liens under the Act);
-information about deemed subcontract completion;
-information on leases and the extent to which a landlord is paying for the improvement; and
-information about the phased release of holdback
on the other hand, everyone in the construction ladder must be ready to answer a s.39 request within the time-frame required (of no more than 21 days). Given the enhanced information that can be requested, time and resources will need to be set aside for this purpose. Anyone who fails to answer a request as required will be liable for any damages the person who made the request suffers as a result. These might be substantial if that person's lien, bond or trust claims are impacted;
while the definition of a "public contract" is complicated, it is also, effectively any contract funded with tax payer's money;
the prescribed form of labour and material payment bond for public contracts only provides protection to 1st and 2nd tier subcontractors. (This notwithstanding that the Act calls for coverage for all subcontractors and suppliers of services and materials);
in addition, the prescribed form of labour and material payment bond effectively limits the recovery of a second-tier subcontractor to that subcontractor's holdback entitlement.
As always, determining one's rights and obligations under construction legislation can be very complicated. The above is intended for general information and not for use in any particular circumstance. It is recommended that experienced construction law counsel be consulted in this regard.