TRAINING.

Overview

After participating in this course, you will be able to:

• Learn about the Prompt Payment legislation now in effect in Alberta, Ontario, and Saskatchewan and on construction projects subject under federal jurisdiction and how it will affect the payment practices and lien rights in the construction industry
• Gain an understanding of the key concepts and requirements of prompt payment, such as proper invoices, payment deadlines, notices of non-payment, and interest on late payments
• Discover the new adjudication process that will provide a fast and cost-effective way to resolve payment disputes without going to court
• Explore the changes to the existing lien legislation in Alberta, Ontario and Saskatchewan, such as the extension of lien filing deadlines, the introduction of phased holdbacks, and the clarification of lienable lands
• Get practical tips and best practices on how to comply with the new prompt payment requirements and modified lien rights and obligations, as well as how to avoid common pitfalls and risks

Description
Prompt Payment requirements on construction projects are now the law in Alberta, Ontario, Saskatchewan and for federal government construction. Similar requirements are on the path to becoming law in other provinces, with Manitoba, New Brunswick, and Nova Scotia being the furthest along.

Prompt payment requirements replace contractual payment timelines with a strict 28-day time limit for owners to pay contractors and 7-day timelines for each subsequent level down the construction pyramid.

Prompt Payment has been in effect on new projects in Ontario since October 2019, Saskatchewan since March 1, 2022, Alberta since August 29, 2022, and federally since December 9, 2023.

Prompt Payment requirements are in addition to, not a substitute for, traditional remedies under lien legislation, which remain available and useful.

This one-day seminar will update the current state of the law of prompt payment and builders' liens across Canada to ensure you comply with the law, avoid the serious pitfalls of failing to do so, and use all the available rights and remedies to complete your project successfully.

Who Should Attend

Everyone subject to the requirements of Lien Legislation and applicable Prompt Payment requirements, such as: 

• Contractors
• Owners
• Developers
• Consultants
• Project and Construction Managers
• Lawyers

Please note: You can check other time zones here.

Syllabus

Overview – The New Legislation

• What’s new? Prompt Payment: what is it, how does it work, and when do Prompt Payment obligations start?
• How does Prompt Payment work in tandem with traditional lien legislation rights?
• Collateral changes: Amendments to lien rights, procedures, and access to project information to comply with how construction projects are built in the twenty-first century
• Who is affected by these changes?
• Transition rules – when and how do the new rules apply, and what’s the effect, if any, on existing projects?

Prompt Payment – the Easy Part – Following the Prompt Payment Process

• Triggering the Prompt Payment process with the delivery of a Proper Invoice
• The requirements of a Proper Invoice: a checklist
• Evaluating a Proper Invoice and making Prompt Payment: the timelines
• The easiest, fastest, and cheapest way to resolve issues with Proper Invoices to avoid the need for Adjudication

Prompt Payment – the Hard Part – Adjudication

• The two routes to Adjudication: overtly by disputing payment or covertly by simply not paying on time
• The whirlwind Adjudication process: how it’s triggered, who administers it; and how it is conducted
• Who pays for Adjudication? You do. How much does Adjudication cost?
• Overview of what has gone to Adjudication to date, and lessons that can be learned

Prompt Payment – the Really Hard Part – Enforcement of Adjudication Orders

• The Adjudication Order for Payment:
• Can it be challenged in court? The limited possibility of judicial review in theory and the actual refusal of judicial review by the courts to date
• The practical and legal consequences if payment is not made
• The right of unpaid contractors, subcontractors and suppliers to simultaneously pursue other rights under lien legislation, and the risk to owners, including additional legal costs

Lien Rights

• What’s changed? Holdback periods, registration, and progressive release of holdback.
• Review of how the lien provisions of the legislation will work now
• The nature and purpose of the lien as a remedy
• Owners’ obligations
• Lien claimants’ rights and procedures to follow
• When liens do occur: two paradigm scenarios and two vastly different outcomes

Other Important Overlooked Rights and Obligations Under the Legislation

• Claimants’ enhanced rights to project payment information.
• Trust rights and obligations

Wrap-Up

Concluding Remarks and Final Adjournment

Instructor

Michael MacKay practiced law in Toronto for over 21 years, the last 19 almost exclusively in the field of construction law and the last 14 at his own firm. He was a member of the Ontario Bar Association’s Construction Law Section’s Executive Committee from 1993 to 2009 and for most of that time co-edited its newsletter “Nuts & Bolts.” He is a frequent contributor to the Construction Law Letter.

For over 20 years, he has travelled all across Canada to talk on construction law topics – including a complete construction law course for EPIC.