Section 39 Requests for Information under July 1, 2018 Changes:
mortgagees, contractors and subcontractors have always been able to make requests under s. 39, for such information as the parties to and amounts of a contract or subcontract, a status of accounts, a copy of any labour and material payment bond issued, whether or not substantial performance has been reached and how and when mortgage funds were dispersed.
the scope of what can be requested under s.39 of the Act has now been expanded. The information available will be help parties further protect their interests, meet their obligations and get paid.
on the other hand, everyone in the construction ladder must still answer a s.39 request within 21 days (or sometimes less). Anyone who fails to do so is liable for any damages the person who made the request might suffer as a result. These might be substantial if that person's lien, bond or trust claims are impacted.
The new scope of requests include:
- a much more detailed status of accounts from those above in the construction ladder (which can assist in determining if lien or trust remedies should be pursued);
-information about leases registered on title and the extent to which the improvement is being funded through lease-hold improvements (as the landlord will now be liable to pay holdback in that circumstance);
-information on leases and the extent to which a landlord is paying for the improvement; and
-information about the phased release of holdback.
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.