b'BENCHMARKSPROPOSED CHANGES to The Builders Liens ActBy John B. Martens and Daryl A. Chicoine The Builders Liens Act (the Act) has not had any substantiveincorporate prompt payment reforms into an updated Act. changes in almost 40 years. Over that time, ManitobasThe Commission proposes that the prompt payment section construction industry has expanded and undergone significantof the Act be separated into seven main sections which changes. Industry stakeholders have expressed concerns withaddress the following:the interpretation and obligations imposed by the Act. The1. Manitoba Law Reform Commission (the Commission), aProper Invoice. This proposed section of an updated Act public statutory body tasked with providing recommendationsdetails the information that must be included to constitute for the improvement, modernization and reforms ofa proper or adequate invoice that starts the clock on Manitobas laws, completed its extensive review of the Actpayment deadlines;Time for Giving Invoice. To strike a balance between and published its Final Report in November 2018. The Final2. Report recommends modernization of the Act to become Thefreedom of contract and the establishment and Construction Contract Remedies Act, with the goal of makingenforcement of minimum standards, the Commission it more accessible and user-friendly, while also returning toproposes that, unless the contract provides otherwise, the Acts original purpose of providing payment protectionsinvoices are to be given on a monthly basis.for those within the construction contract pyramid. The3.Deadlines for Payment. The Commission recommends Commission proposes that the Act accomplish this goal by, among other changes, adding two new protections: promptthat the following payment deadlines be adopted: the payment provisions and an interim adjudication process. owner shall pay the contractor within 28 days of the submission of a proper invoice; the contractor shall pay PROMPT PAYMENTthe subcontractor within seven days of the date the Prompt payment legislation for the construction industrycontractor is paid by the owner; and a subcontractor has been a hot topic across Canada for many years, withshall pay the sub-subcontractor within seven days of the Manitoba subcontractors requesting legislative interventiondate the subcontractor is paid by the contractor. In other in this area since at least 2009. Ontario has enacted a promptwords, each party down the pyramid from the owner payment regime which will come into effect on October 1,must make payments to its suppliers and subcontractors 2019. Manitoba seeks to follow that lead and may seek towithin seven days of the date that it receives payment. enact prompt payment legislation as recommended by the4.Notice of Non-payment. The proposed updated Act Commissions Report. would require an owner who disputes any part of a The Commission recommends that, rather than enactingproper invoice to issue a written Notice of Non-payment standalone prompt payment legislation, Manitoba shouldwithin 14 days of receiving the invoice, setting out the adopt the approach introduced by Ontario and insteadamount disputed with reasons. If the contractor intends to rely upon the owners Notice of Non-payment to withhold payment from subcontractors, the contractor is then required to provide written notice of its intention to not pay subcontractor amounts claimed as due. This requirement applies to all those down the payment chain.5.Contractor Response to Non-payment Notice. If a contractor has advised subcontractors of the owners Notice of Non-payment and within 21 days seeks CONCRETE RESTORATION SERVICES adjudication of the issue, the contractors payment obligations with respect to the disputed amounts areParkade Repairs/MaintenanceBalcony Repairs Structural Concrete RepairsBuilding Envelopesuspended until determination of the matter. A contractorSealant Services Waterproofing who does not provide notice of an owners Notice of Non-payment is required to fully pay its subcontractors Carlson Commercial & Industrial Services Ltd. within the usual prompt payment timelines. 1035 Mission St., Winnipeg, MB CanadaR2J 0A4 Ph: (204) 233-0671 Fax: (204) 233-6938 6.Rules for Distribution of Partial Payments. If awww.carlsoncommercial.cawww.carlsonindustrial.ca contractor receives only partial payment of the amount 24 BUILD MANITOBAwinnipegconstruction.ca'