BILL 12
Construction Remedies Act
Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:
DEFINITIONS, INTERPRETATION
AND APPLICATION
Definitions
1 The following definitions apply in this Act.
“approved parcel identifier” means an approved parcel identifier as defined in the Land Titles Act. (numéro d’identification approuvé)
“architect” means a person who is entitled to practise architecture under the Architects Act. (architecte)
“contract” means a contract between an owner or an owner’s agent and a contractor relating to the supply of services or materials for an improvement and includes an amendment to that contract. (contrat)
“contract price” means (prix contractuel)
athe contract price agreed on between the parties or, if no specific price has been agreed on between them, the actual market value of the services or materials supplied for the improvement under the contract, and
bany direct costs incurred as a result of services or materials being supplied for an extended period, if the contractor is not responsible for the extension.
“contractor” means a person contracting with, or employed directly by, the owner or the owner’s agent to supply services or materials for an improvement, but does not include a worker. (entrepreneur)
“court” means The Court of Queen’s Bench of New Brunswick, and includes a judge of that court. (cour)
“Crown” means the Crown in right of the Province and includes a Crown corporation or Crown agency. (Couronne)
“engineer” means a person who is entitled to practise professional engineering under the Engineering and Geoscience Professions Act. (ingénieur)
“financial institution” means (institution financière)
aa bank listed in Schedule I, II or III of the Bank Act (Canada),
ba credit union as defined in the Credit Unions Act,
ca loan or trust company licensed under the Loan and Trust Companies Act, and
dany other person or class of persons prescribed by regulation.
“highway” includes a road, road allowance, street, lane, thoroughfare, bridge, subway, pier, ferry, square, and public place, appropriated to the public use. (route)
“highway improvement” means, in respect of a highway, (amélioration routière)
aany alteration, addition or capital repair to the highway,
bany construction, erection or installation on the highway, including the installation of industrial, mechanical, electrical or other equipment on the highway or on any building, structure or works on the highway that is essential to the normal or intended use of the highway, building, structure or works, or
cthe complete or partial demolition or removal of any building, structure or works on the highway.
“improvement” means, in respect of any land, (amélioration)
aany alteration, addition or capital repair to the land,
bany construction, erection or installation on the land, including the installation of industrial, mechanical, electrical or other equipment on the land or on any building, structure or works on the land that is essential to the normal or intended use of the land, building, structure or works, or
cthe complete or partial demolition or removal of any building, structure or works on the land.
“land registration office” means a registry office established under the Registry Act or a land titles office established under the Land Titles Act. (bureau d’enregistrement des biens-fonds)
“lien” means a lien created by this Act and, unless the context otherwise requires, includes a lien against a public owner’s holdback. (privilège)
“lienholder” means a person who has a lien. (titulaire de privilège)
“lien against a public owner’s holdback” means the charge on a holdback of a person who supplies services or materials for (privilège sur la retenue de garantie faite par un propriétaire public)
aan improvement for an owner that is the Crown, or
ba highway improvement for an owner that is a local government.
“local government” means a local government as defined in subsection 1(1) of the Local Governance Act. (gouvernement local)
“materials” means movable property (matériaux)
athat becomes, or is intended to become, part of an improvement, or that is used directly in the making of an improvement, or that is used to facilitate directly the making of an improvement, or
bthat is equipment rented without an operator for use in the making of an improvement.
“owner” means any person having an estate or interest in land on or in respect of which an improvement is made at the person’s request and either (propriétaire)
aon the person’s credit,
bon the person’s behalf,
cwith the person’s privity or consent, or
dfor the person’s direct benefit.
“payment certifier” means the person on whose certificate payments are made on a contract. (certificateur pour paiement)
“registrar” means registrar as defined in the Land Titles Act or registrar as defined in the Registry Act, as the case may be. (registrateur)
“special purpose entity” means a person or other entity, whether incorporated or not, that enters into a project agreement referred to in section 6. (entité ad hoc)
“subcontract” means an agreement between a contractor and a subcontractor, or between subcontractors, relating to the supply of services or materials for an improvement and includes an amendment to that agreement. (sous-contrat)
“subcontract price” means (prix sous-contractuel)
athe subcontract price agreed on between the parties, or if no specific price has been agreed on between them, the actual market value of the services or materials supplied for the improvement under the subcontract, and
bany direct costs incurred as a result of services or materials being supplied for an extended period, if the subcontractor is not responsible for the extension.
“subcontractor” means a person contracting with a contractor or contracting with another subcontractor under the contractor to supply services or materials for an improvement, but does not include a contractor or a worker. (sous-traitant)
“supply of services” means work done or services performed, and includes (fourniture de services)
athe rental of equipment with an operator and the wages of that operator, and
bif the making of a planned improvement is not commenced, the supply of a design, plan, drawing or specification by an architect or engineer that in itself enhances the value of the owner’s interest in the land.
“wages” means remuneration or compensation of any kind of a worker for the supply of services, whether by time, as piece work or otherwise. (salaire)
“worker” means an individual employed for wages in any kind of labour, whether employed under a contract of service or not. (ouvrier)
Interpretation of “capital repair”
2 For the purposes of paragraph (a) of the definitions “highway improvement” and “improvement” in section 1, a capital repair to land or to a highway is any repair intended to extend the normal economic life of the land or highway or of any building, structure or works on the land or highway, or to improve the value or productivity of the land, highway, building, structure or works, but does not include maintenance work performed in order to prevent the normal deterioration of the land, highway, building, structure or works or to maintain the land, highway, building, structure or works in a normal, functional state.
Interpretation of “direct costs”
3 For the purposes of paragraph (b) of the definitions “contract price” and “subcontract price” in section 1, the direct costs incurred are the reasonable costs incurred in performing the contract or subcontract during the extended period, and include costs related to the supply of additional services or materials, additional insurance and surety bond premiums, and costs resulting from seasonal conditions, that, but for the extension, would not have been incurred, but do not include indirect damages suffered as a result of the extension.
Interpretation of “owner”
4 For the purposes of the definition “owner” in section 1, a person claiming under an owner, whose rights are acquired after the start of the supply of services or materials for the improvement in respect of a which a lien is claimed, shall be considered an owner.
Interpretation of “services or materials”
5 In this Act, a reference to “services or materials” includes both services and materials, unless the context otherwise requires.
Project agreements between the Crown or a local government and a special purpose entity to finance and undertake an improvement
6( 1) This section applies if the Crown or a local government, as the owner, enters into a project agreement with a special purpose entity that requires the entity to finance and undertake an improvement on behalf of the Crown or local government, as the case may be, and, for that purpose, to enter into an agreement with a contractor in respect of the improvement.
6( 2) This Act and the regulations apply, with the modifications set out in this section and any other necessary modifications,
ato a project agreement between the Crown or a local government and a special purpose entity as if the project agreement were a contract and the special purpose entity were the contractor, and
bto an agreement between the special purpose entity and the contractor as if the agreement were a subcontract made under a contract referred to in paragraph (a).
6( 3) The special purpose entity is deemed to be the owner in place of the Crown or a local government, and the agreement between the special purpose entity and the contractor is deemed to be the contract for the purposes of the following provisions of this Act, and any regulations made for the purposes of those provisions:
asections 7 and 8;
bsections 34 to 53;
csections 59 to 61;
dsection 65;
esection 84;
fsection 87, except for paragraph (1)(b); and
gany other provision prescribed by regulation.
Substantial performance
7( 1) For the purposes of this Act, a contract is substantially performed
awhen the improvement under the contract is ready for use or is being used for the purposes intended, and
bwhen the improvement is capable of completion or, if there is a known defect, of correction, at a cost of not more than
( i) 3% of the first $250,000 of the contract price,
( ii) 2% of the next $250,000 of the contract price, and
( iii) 1% of the balance of the contract price.
7( 2) For the purposes of this Act, when the improvement is ready for use or is being used for the purposes intended and the owner and the contractor agree not to complete the improvement expeditiously or, due to reasons beyond the control of the contractor, the improvement cannot be completed expeditiously, the value of the services or materials remaining to be supplied and required to complete the improvement shall be deducted from the contract price in determining substantial performance.
Completion of contract
8 For the purposes of this Act, a contract is completed when the cost of completing it, correcting a known defect or supplying the services or materials remaining to be supplied for the improvement is not more than 1% of the contract price.
No contracting out of Act
9( 1) The provisions of this Act apply despite any agreement to the contrary, and any waiver or release of the rights, benefits or protections provided under this Act is void.
9( 2) Every contract or subcontract is deemed to be amended to the extent necessary to conform with this Act.
This Act binds the Crown
10 This Act binds the Crown.
TRUSTS
Owner’s trust
11( 1) This section does not apply to the following owners:
athe Crown; and
ba local government.
11( 2) The following amounts are and constitute an owner’s trust fund:
aall amounts received by the owner that are to be used in the financing of the improvement, including any amount that is to be used in the payment of the purchase price of the land and of prior encumbrances, subject to the payment of the purchase price and prior encumbrances;
b in the case of an owner whose estate or interest in land on or in respect of which an improvement is made is sold, or whose estate or interest in an improvement is sold, an amount equal to the value of the consideration received by the owner as a result of the sale, less the reasonable expenses arising from the sale and the amount, if any, paid by the owner to discharge any mortgage indebtedness on the land;
cwhen an amount becomes payable under a contract to a contractor by the owner, an amount that is equal to the amount payable that is in the owner’s hands or received by the owner at any time after the amount becomes payable;
dwhen the substantial performance of a contract has been certified, or has been declared by the court, an amount that is equal to the unpaid contract price of the substantially performed portion of the contract that is in the owner’s hands or is received by the owner at any time after substantial performance has been certified or declared; and
eif an improvement is wholly or partly destroyed or damaged, any amount received or receivable by the owner or a mortgagee by reason of insurance after satisfying the claim of any mortgagee that is entitled to priority.
11( 3) The following persons are the beneficiaries of an owner’s trust fund created by subsection (2):
a the contractor, subcontractors and other persons who have supplied services or materials for an improvement; and
bthe Workplace Health, Safety and Compensation Commission.
11( 4) An owner is the trustee of the trust fund created by subsection (2) and an owner shall not appropriate or convert any part of the fund to the owner’s own use or to any use inconsistent with the trust until the contractor, subcontractors and other persons who have supplied services or materials for the improvement are paid all amounts owed to them related to the improvement and the Workplace Health, Safety and Compensation Commission is paid all assessments related to the improvement.
Permitted uses of owner’s trust fund
12( 1) An owner that is a trustee of a trust fund created by subsection 11(2) that has paid in whole or in part for the supply of services or materials for the improvement out of money that is not subject to that trust may retain from trust funds an amount equal to the amount the owner paid for the supply of those services or materials.
12( 2) An owner that is a trustee of a trust fund created by subsection 11(2) that has paid in whole or in part for the supply of services or materials for the improvement out of money that is loaned to the owner may apply trust funds to discharge the loan to the extent that the lender’s money was used to pay for the supply of those services or materials.
12( 3) An owner that is a trustee of a trust fund created by subsection 11(2) may retain from trust funds an amount that, as between the owner and the contractor, is equal to the balance in the owners’s favour of all outstanding debts, claims or damages related to the improvement or, if the contractor becomes insolvent, all outstanding debts, claims or damages whether or not related to the improvement.
12( 4) For greater certainty, the following uses of trust funds by an owner are not considered an appropriation or a conversion to the owner’s own use nor are they uses inconsistent with the trust:
athe retention of an amount from trust funds under subsection (1);
bthe application of an amount from trust funds under subsection (2); and
cthe retention of an amount from trust funds under subsection (3).
12( 5) Nothing in this section relieves an owner from the requirement to retain a holdback under section 34.
Offence – breach of owner’s trust
13( 1) Every owner who appropriates or converts any part of a trust fund created by subsection 11(2) to the owner’s own use or to any use inconsistent with the trust commits an offence punishable under Part 2 of the Provincial Offences Procedure Act as a category F offence.
13( 2) Every director or officer of a corporation who assents to or acquiesces in conduct that the director or officer knows or reasonably ought to know amounts to the corporation committing an offence referred to in subsection (1), also commits the offence.
Contractor’s and subcontractor’s trust
14( 1) The following amounts are and constitute a contractor’s trust fund:
aall amounts owing to the contractor on account of the contract price, whether due or payable;
ball amounts received by the contractor on account of the contract price; and
cif an improvement is wholly or partly destroyed or damaged, any amount received or receivable by the contractor or a mortgagee, by reason of insurance after satisfying the claim of any mortgagee that is entitled to priority.
14( 2) The following persons are the beneficiaries of a contractor’s trust fund created by subsection (1):
aall the subcontractors and other persons whose supply of services or materials for the improvement have contributed to the performance of the contract, whether parties to the contract or not; and
bthe Workplace Health, Safety and Compensation Commission.
14( 3) A contractor is the trustee of a contractor’s trust fund created by subsection (1) and shall not appropriate or convert any part of the fund to the contractor’s own use or to any use inconsistent with the trust until the beneficiaries referred to in paragraph (2)(a) are paid all amounts owed to them related to the improvement and the Workplace Health, Safety and Compensation Commission is paid all assessments related to the improvement.
14( 4) The following amounts are and constitute a subcontractor’s trust fund:
aall amounts owing to the subcontractor on account of the subcontract price, whether due or payable;
ball amounts received by the subcontractor on account of the subcontract price; and
cif an improvement is wholly or partly destroyed or damaged, any amount received or receivable by the subcontractor or a mortgagee, by reason of insurance after satisfying the claim of any mortgagee that is entitled to priority.
14( 5) The following persons are the beneficiaries of a subcontractor’s trust fund created by subsection (4):
aall the subcontractors and other persons whose supply of services or materials for the improvement have contributed to the performance of the subcontract, whether parties to the subcontract or not; and
bthe Workplace Health, Safety and Compensation Commission.
14( 6) A subcontractor referred to in subsection (4) is the trustee of a subcontractor’s trust fund created by that subsection and shall not appropriate or convert any part of the fund to the subcontractor’s own use or to any use inconsistent with the trust until the beneficiaries referred to in paragraph (5)(a) are paid all amounts owed to them related to the improvement and the Workplace Health, Safety and Compensation Commission is paid all assessments related to the improvement.
Permitted uses of contractor’s and subcontractor’s trust funds
15( 1) A contractor that is a trustee of a contractor’s trust fund or a subcontractor that is a trustee of a subcontractor’s trust fund, that has paid in whole or in part for the supply of services or materials for the improvement out of money that is not subject to that trust, may retain from trust funds an amount equal to the amount the contractor or subcontractor paid for the supply of those services or materials.
15( 2) A contractor that is a trustee of a contractor’s trust fund or a subcontractor that is a trustee of a subcontractor’s trust fund, that has paid in whole or in part for the supply of services or materials for the improvement out of money that is loaned to the contractor or subcontractor, may apply trust funds to discharge the loan to the extent that the lender’s money was used to pay for the supply of those services or materials.
15( 3) A contractor that is a trustee of a contractor’s trust fund may retain from trust funds an amount that, as between the contractor and the person the contractor is liable to pay under a contract, is equal to the balance in the contractor’s favour of all outstanding debts, claims or damages related to the improvement or, if the person the contractor is liable to pay becomes insolvent, all outstanding debts, claims or damages whether or not related to the improvement.
15( 4) A subcontractor that is a trustee of a subcontractor’s trust fund may retain from trust funds an amount that, as between the subcontractor and the person the subcontractor is liable to pay under a subcontract, is equal to the balance in the subcontractor’s favour of all outstanding debts, claims or damages related to the improvement or, if the person the subcontractor is liable to pay becomes insolvent, all outstanding debts, claims or damages whether or not related to the improvement.
15( 5) For greater certainty, the following uses of trust funds by a contractor or subcontractor are not considered an appropriation or a conversion to the contractor’s or subcontractor’s own use nor are they uses inconsistent with the trust:
athe retention of an amount from trust funds under subsection (1);
bthe application of an amount from trust funds under subsection (2); and
cthe retention of an amount from trust funds under subsection (3) or (4).
Offences – breach of contractor’s and subcontractor’s trust
16( 1) Every contractor who appropriates or converts any part of a trust fund created by subsection 14(1) to the contractor’s own use or to any use inconsistent with the trust commits an offence punishable under Part 2 of the Provincial Offences Procedure Act as a category F offence.
16( 2) Every subcontractor who appropriates or converts any part of a trust fund created by subsection 14(4) to the subcontractor’s own use or to any use inconsistent with the trust commits an offence punishable under Part 2 of the Provincial Offences Procedure Act as a category F offence.
16( 3) Every director or officer of a corporation who assents to, or acquiesces in, conduct that the director or officer knows or reasonably ought to know amounts to the corporation committing an offence referred to in subsection (1) or (2) also commits the offence.
Liability for breach of trust – directors, officers or other persons in control of a corporation
17( 1) If a corporation is a trustee of a trust fund created by subsection 11(2), or subsection 14(1) or (4), any of the following persons who assents to, or acquiesces in, conduct that the person knows or reasonably ought to know amounts to a breach of trust by the corporation is liable for the breach of trust:
aa director or officer of the corporation; and
bany person who has effective control of the corporation or its relevant activities, including an employee or agent of the corporation.
17( 2) The question of whether a person has effective control of a corporation or its relevant activities is one of fact and, in determining that question, the court may disregard the form of any transaction and the separate corporate existence of any participant.
17( 3) All persons who are found liable or who have admitted liability for a breach of trust referred to in subsection (1) are jointly and severally liable.
17( 4) A person who is found liable, or who has admitted liability, for a breach of a trust referred to in subsection (1) is entitled to recover contribution from any other person also liable for the breach in an amount that will result in equal contribution by all parties liable for the breach unless the court considers that apportionment would not be fair and, in that case, the court may direct the contribution or indemnity that the court considers appropriate in the circumstances.
Payments discharging a trust
18 Subject to section 34, every payment by a trustee of a trust fund created by subsection 11(2) or subsection 14(1) or (4) to a person the trustee is liable to pay for services or materials supplied for an improvement discharges the trust of the trustee making the payment and the trustee’s obligations and liability as trustee to all beneficiaries of the trust fund to the extent of the payment made by the trustee.
Directions from court
19( 1) An application for directions may be made to the court if a dispute arises
arespecting the claim of a beneficiary of a trust fund created by subsection 11(2) or subsection 14(1) or (4), or
brespecting the administration of a trust fund created by subsection 11(2) or subsection 14(1) or (4).
19( 2) An application under subsection (1) may be made by the following persons:
athe person with respect to whose claim the dispute has arisen;
bany beneficiary of a trust fund created by subsection 11(2) or subsection 14(1) or (4); or
cthe trustee of a trust fund created by subsection 11(2) or subsection 14(1) or (4).
LIENS
Lien for wages and supply of services or materials
20( 1) A person who supplies services or materials for an improvement for an owner, contractor or subcontractor has a lien for the amount of wages owed to the person or for the contract price or subcontract price of those services or materials, as the case may be, or for as much of those amounts that remain owing to the person, that, subject to sections 22 and 23, attaches to the owner’s estate or interest in
athe land in respect of which the improvement is made, and
bthe improvement.
20( 2) Materials shall be deemed to be supplied for an improvement when they are delivered
ato the land on which they are to be used, or
bto a place that is
( i) in the immediate vicinity of the land on which they are to be used, and
( ii) designated by the owner or the owner’s agent, or by the contractor or a subcontractor.
20( 3) When materials supplied for an improvement are incorporated into the improvement, a lien attaches as provided in subsection (1), even if the materials have not been delivered in strict accordance with subsection (2).
When lien arises
21 A person’s lien arises when the person first supplies services or materials for the improvement.
Crown lands
22( 1) A lien does not attach to and a claim for lien cannot be registered against the Crown’s estate or interest in land or in an improvement.
22( 2) A person who supplies services or materials for an improvement for an owner that is the Crown, who would otherwise have a lien under subsection 20(1), has a charge on the holdback retained under section 34 for the amount of wages owed to the person or for the contract price or subcontract price of those services or materials, as the case may be, or for as much of those amounts that remain owing to the person, and the provisions of this Act shall have effect without requiring the registration of a claim for lien against the Crown’s estate or interest in the land or in the improvement.
22( 3) If an improvement is made to land in which the Crown has an estate or interest but the Crown is not an owner, a lien under subsection 20(1) may attach to another person’s estate or interest in the land and in the improvement.
Highways of local governments
23( 1) A lien does not attach to and a claim for lien cannot be registered against the estate or interest of a local government in a highway or in a highway improvement.
23( 2) A person who supplies services or materials for a highway improvement for an owner that is a local government, who would otherwise have a lien under subsection 20(1), has a charge on the holdback retained under section 34 for the amount of wages owed to the person or for the contract price or subcontract price of those services or materials, as the case may be, or for as much of those amounts that remain owing to the person, and the provisions of this Act shall have effect without requiring the registration of a claim for lien against the local government’s estate or interest in the highway or in the highway improvement.
23( 3) If an improvement is made to a highway in which a local government has an estate or interest but the local government is not an owner, a lien under subsection 20(1) may attach to another person’s estate or interest in the highway and in the highway improvement.
No claim for lien below amount prescribed by regulation
24( 1) No claim for lien shall be registered in respect of a lien that attaches to land and an improvement, if the amount of the claim or the aggregate of joined claims is less than the amount prescribed by regulation.
24( 2) No claim for lien shall be given in respect of a lien against a public owner’s holdback, if the amount of the claim or the aggregate of joined claims is less than the amount prescribed by regulation.
Limitation on lien and set off
25( 1) The lien of a contractor cannot be for an amount greater than the amount owing to the contractor by the owner.
25( 2) The lien of a person other than a contractor cannot be for an amount greater than the amount owing to the contractor or subcontractor or other person for whom the person supplied services or materials for the improvement.
25( 3) The liens of all the persons who have supplied services or materials for an improvement for the same contractor or subcontractor cannot be for an amount greater than the amount owing to the contractor or subcontractor, as the case may be, by the person liable to pay for the services or materials supplied for the improvement.
25( 4) In determining the amount of a lien under subsection (1), (2) or (3), there may be taken into account the amount that is, as between the owner, contractor or subcontractor who is liable to pay for the services or materials supplied for the improvement and the person to whom the owner, contractor or subcontractor is liable to pay, equal to the balance in the favour of the owner, contractor or subcontractor, as the case may be, of all outstanding debts, claims or damages, that are related to the improvement or, if the person to whom the owner, contractor or subcontractor is liable to pay becomes insolvent, of all outstanding debts, claims or damages whether or not related to the improvement.
25( 5) For greater certainty, a lien cannot be for an amount greater than the amount owing to the contractor by the owner.
25( 6) Nothing in this section relieves an owner from the requirement to retain a holdback under section 34.
No payments or assignments to defeat lien
26( 1) A payment made for the purpose of defeating or impairing a lien is void for that purpose.
26( 2) A conveyance, mortgage or charge of or on land given in payment of or as security for a lien on that land or improvement whether given before or after the lien arises, shall be deemed to be fraudulent and void as against any other lienholder on the same land or improvement.
26( 3) An assignment by a contractor or subcontractor of any moneys that may be or become payable under or in respect of a contract or subcontract shall be deemed to be fraudulent and void as against any other lienholder on the same land or improvement.
Leaseholds
27( 1) This section does not apply to the following owners:
athe Crown; and
ba local government.
27( 2) If the estate or interest of an owner in land on which a lien attaches is leasehold, the estate or interest of that owner’s landlord is subject to the lien and if the estate or interest of the owner’s landlord is leasehold, the estate in fee simple is subject to the lien, in either of the following circumstances:
athe person entitled to the estate in fee simple or the owner’s landlord, or both, consented to the supply of services or materials giving rise to the lien and those services or materials were supplied for the direct benefit of the person entitled to the estate in fee simple or the owner’s landlord; or
bthe owner is required to supply the services or materials giving rise to the lien by the owner’s lease or other agreement with the landlord or other person entitled to the estate in fee simple.
27( 3) A lien that arises under subsection (2) cannot be for an amount greater than the amount the owner was required to retain as a holdback under section 34.
Termination of a lease – effect on lien
28( 1) If the estate or interest of an owner in land on which a lien attaches is leasehold, no forfeiture or termination, or attempted forfeiture or termination, of the lease on the part of the owner’s landlord, except for non-payment of rent, deprives the lienholder of the benefit of the lien.
28( 2) A lienholder whose lien is against a leasehold estate or interest in land may pay any rent due or accruing and the amount paid may be added to the lienholder’s claim for lien.
28( 3) If a landlord intends to enforce forfeiture or terminate a lease because of non-payment of rent, and there is a claim for lien registered against the leasehold estate or interest in land in the appropriate land registration office, the landlord shall give notice to each lienholder who has registered a claim for lien of the landlord’s intention to enforce forfeiture or terminate the lease.
28( 4) A notice referred to in subsection (3) shall be in the form prescribed by regulation and shall include the amount of unpaid rent owing.
28( 5) A lienholder receiving notice under subsection (3) may pay to the landlord the amount of the unpaid rent within ten days after receiving the notice, and the amount paid may be added to the lienholder’s claim for lien.
Insurance proceeds
29 If an improvement that is subject to a lien is wholly or partly destroyed or damaged, any money received or receivable by the owner or a mortgagee by reason of insurance is, after satisfying any prior mortgage, subject to all claims for liens to the same extent as if the money had been realized by a sale of the land in an action to enforce a lien.
Written notice of lien
30( 1) A lienholder may give an owner a written notice of lien in the form prescribed by regulation.
30( 2) A written notice of lien shall contain the following information:
athe name, civic address and mailing address, if different from the civic address, of
( i) the lienholder,
( ii) the person that the lienholder believes to be the owner, and
( iii) the person for whom the services or materials were supplied;
ba short description of the services or materials that were supplied;
cthe amount claimed in respect of services or materials that were supplied;
da statement that, in addition to a holdback retained under section 34, the owner is required to retain the amount referred to in paragraph (c) from the amount payable to the contractor;
ea description sufficient to identify the land;
fan address for service of the lienholder; and
gthe date the notice is signed.
30( 3) An affidavit in the form prescribed by regulation verifying the information referred to in subsection (2) shall be given to the owner along with the written notice of lien.
30( 4) An affidavit referred to in subsection (3) shall be made by the lienholder or by the lienholder’s agent or assignee, if the agent or assignee has personal knowledge of the information being verified.
30( 5) If an affidavit is made by an agent or assignee, it shall state that the person has personal knowledge of the information verified.
Effect of written notice of lien
31( 1) On receiving a written notice of lien in accordance with section 30, an owner shall retain the amount claimed in the written notice of lien from the amount payable to the contractor under whom the lien is derived.
31( 2) An amount retained by an owner under subsection (1) is in addition to a holdback required to be retained under section 34.
31( 3) All amounts retained under subsection (1) constitute a fund for the benefit of lienholders who give written notices of liens under section 30, and that fund shall remain separate from a holdback retained under section 34.
31( 4) The lien of each lienholder who gives a written notice of lien under section 30 constitutes a charge on the amount retained under subsection (1) in the lienholder’s favour.
31( 5) Subject to section 81, the lien of each lienholder who gives a written notice of lien under section 30 ranks in equal priority and the fund referred to in subsection (3) shall be distributed among the lienholders on a pro rata basis.
31( 6) A lienholder who receives a payment under this section is entitled to payment of any balance remaining payable to the lienholder from the holdback retained under section 34.
Withdrawal or discharge of written notice of lien
32( 1) A written notice of lien given in accordance with section 30 may be withdrawn by giving the owner to whom it was given a notice of withdrawal in the form prescribed by regulation.
32( 2) A person may apply to the court under section 73 or 75 for an order discharging a written notice of lien.
32( 3) For the purposes of subsection 31(1), when a written notice of lien is withdrawn or discharged, the owner is in the same position as if the written notice of lien had never been given.
Removal of materials
33( 1) During the existence of a lien, no part of any materials that are affected by the lien may be removed to the prejudice of the lien.
33( 2) Materials actually supplied for the purpose set out in subsection 20(1) are subject to a lien in favour of the person supplying them until they are incorporated into the improvement.
33( 3) While a lien in subsection (2) exists, the materials are not subject to execution or other process to enforce any debt other than that for the purchase money of those materials.
HOLDBACKS
Holdback
34( 1) An owner who is liable to pay for the supply of services or materials under a contract under which a lien may arise shall retain a holdback equal to 10% of the contract price by retaining an amount equal to 10% of the value of the services or materials supplied under the contract, as they are actually supplied, until the expiry of the holdback period in subsection 47(1) or (2), as the case may be.
34( 2) If a contract has been certified or declared to be substantially performed under section 41 and there are services or materials remaining to be supplied to complete the contract, an owner who is liable to pay under the contract shall retain a holdback equal to 10% of the contract price of the services or materials remaining to be supplied by retaining an amount equal to 10% of the value of the services or materials remaining to be supplied, as they are actually supplied, until the expiry of the holdback period in subsection 47(3).
34( 3) The requirement to retain a holdback under subsection (1) or (2) applies whether or not a contract provides for instalment payments or for payment on completion and, in order to comply with that requirement, an owner shall deduct 10% from any payment made under the contract.
34( 4) In the case of a contract for which a contractor is required to provide a labour and material payment bond and performance bond to an owner under subsection 83(4), if the owner is the Crown, the percentage referred to in subsections (1), (2) and (3) shall be read as 5%.
34( 5) If a mortgagee is a financial institution and is authorized by an owner to disburse the money secured by a mortgage, the mortgagee may retain as a holdback the amount required to be retained by the owner under subsection (1) or (2) and the retention by the mortgagee of that amount is deemed to be compliance with this section by the owner.
34( 6) A mortgagee that retains or agrees to retain a holdback under subsection (5)
ahas the same rights and obligations in relation to the holdback as if it had been retained by the owner, and
bis liable to the owner or any lienholder who suffers loss or damage as a result of the failure of the mortgagee
( i) to retain the holdback as agreed, or
( ii) to fulfil the mortgagee’s obligations in relation to the holdback.
34( 7) Every lienholder of a lien that arises under a contract has a charge on the holdback required under this section to be retained by the owner with respect to the contract.
Allowable payments
35( 1) An owner may, without jeopardy, make payments on a contract up to 90% of the contract price of the services or materials that have been supplied under that contract unless, before making payment, the owner has received a written notice of lien in accordance with section 30.
35( 2) In the case of a contract for which a contractor is required to provide a labour and material payment bond and performance bond to an owner under subsection 83(4), if the owner is the Crown, the percentage referred to in subsection (1) shall be read as 95%.
35( 3) If an owner has received a written notice of lien in accordance with section 30, the owner may, without jeopardy, make payment on a contract up to 90% of the contract price of the services or materials that have been supplied under that contract, less the amount claimed in the written notice of lien.
35( 4) In the case of a contract for which a contractor is required to provide a labour and material payment bond and performance bond to an owner under subsection 83(4), if the owner is the Crown, the percentage referred to in subsection (3) shall be read as 95%.
Holdback funds not to be applied to remedy default
36 If a contractor or a subcontractor defaults in the performance of a contract or subcontract, as the case may be, a holdback shall not be applied by any owner toward obtaining services or materials in substitution for those that were to have been supplied by the person in default, nor in payment or satisfaction of any claim against the person in default, until all liens that may be claimed against that holdback have been extinguished, discharged or otherwise provided for under this Act.
Holdback trust account
37( 1) Subject to subsection (2), this section does not apply to
athe following owners:
( i) the Crown, and
( ii) a local government,
ba financial institution that retains a holdback under subsection 34(5), and
ca contract
( i) with a contractor that is a person or in a class of persons prescribed by regulation, or
( ii) with a contract price that is less than the amount prescribed by regulation.
37( 2) This section applies to a special purpose entity that is deemed under subsection 6(3) to be the owner in place of the Crown or a local government.
37( 3) An owner required to retain a holdback under section 34 shall
aestablish a holdback trust account with a financial institution and retain the holdback in that account,
bretain the holdback in accordance with section 39, or
cretain the holdback partly in a holdback trust account and partly in accordance with section 39.
37( 4) An owner that establishes a holdback trust account shall deposit all amounts required under subsection 34(3) to be deducted from payments made under a contract into the account, or, if the holdback is partly retained in accordance with section 39, deposit the portion of those amounts that corresponds to the portion of the holdback to be retained in the account, and the owner shall administer the account jointly with the contractor as trustees.
37( 5) In the case of a contract with more than one owner, the owners may establish a single holdback trust account to be administered by one of them.
37( 6) Despite subsection (4), if there is more than one contract with respect to the same improvement, if the owner establishes a holdback trust account, it shall be a single holdback trust account to be administered jointly by the owner and one other trustee from among the following persons:
aone of the contractors, other than a contractor who is an agent of the owner;
ba lawyer;
can architect or engineer, other than a payment certifier for any of the contracts;
da chartered professional accountant; or
ea trust company licensed under the Loan and Trust Companies Act.
37( 7) The trustees of a holdback trust account referred to in subsection (6) shall maintain traceability by keeping written records of the following:
athe payments that are deposited into and withdrawn from the account;
bany transfers made for the purpose of the trust;
cthe names of the parties involved in the transactions referred to in paragraphs (a) and (b); and
dthe amount retained as a holdback in the trust account for each contract.
37( 8) Unless otherwise ordered by the court, all payments from a holdback trust account require the signatures of both trustees.
37( 9) If a person has a lien at the time of payment from a holdback trust account, the trustees shall, if possible, issue a cheque from the holdback trust account directly to the person according to the person’s proportionate share.
37( 10) A trustee may apply to the court for directions respecting the administration of the trust, and the court may make any order it considers appropriate, including
aan order that the owner establish and administer as sole trustee a holdback trust account,
ban order that one owner establish and administer a holdback trust account, if there is more than one owner,
can order that all or part of the holdback be paid into court,
dan order that a lienholder be paid, and
ean order that a trustee be removed or replaced.
37( 11) A lienholder may apply to the court for an order removing a trustee, and the court may make an order removing the trustee and replacing the trustee with another person, or make any other order required to ensure that the holdback trust account is maintained for the benefit of the lienholders.
Interest on holdback trust accounts
38( 1) Subject to subsection (2), interest on a holdback trust account accrues in accordance with the agreement between the owner and the contractor and, in the absence of an agreement, interest on the holdback trust account accrues,
aduring the holdback period, to the credit of the owner, and
bafter the expiry of the holdback period, to the credit of the contractor.
38( 2) No distribution of interest accruing on amounts deposited in a holdback trust account shall be made until the holdback has been paid out in full.
38( 3) If, after a holdback has been paid out in full, there are lienholders that remain unpaid, the accrued interest on the holdback trust account is deemed to be part of the holdback available for distribution to those lienholders, to the extent necessary to discharge the liens.
Additional methods of retaining holdbacks
39 An owner may retain some or all of the amount required to be retained as a holdback using one or more of the following:
aan irrevocable standby letter of credit in the form prescribed by regulation;
ba holdback release bond in the form prescribed by regulation; and
cany other method prescribed by regulation.
Payment certifiers – requirements
40 A payment certifier is required to be
aan architect,
ban engineer, or
cif not an architect or engineer, identified in the relevant contract as being the payment certifier.
Certificate or declaration of substantial performance of contract
41( 1) If there is a payment certifier in respect of a contract, at the request of the contractor, the payment certifier shall determine whether the contract has been substantially performed, and if so determined the payment certifier shall certify the substantial performance of the contract by signing a certificate of substantial performance.
41( 2) A payment certifier shall sign a certificate of substantial performance within seven days after a request is made under subsection (1) or after the payment certifier determines that the contract has been substantially performed, whichever is later.
41( 3) If there is no payment certifier in respect of a contract, at the request of the contractor, the owner and contractor shall jointly determine whether the contract has been substantially performed, and if so determined they shall certify the substantial performance of the contract by signing a certificate of substantial performance.
41( 4) A contractor and owner shall both sign a certificate of substantial performance within seven days after a request is made under subsection (3) or after they determine that the contract has been substantially performed, whichever is later.
41( 5) A contractor shall request a determination under subsection (1) or (3), as the case may be, if requested by a subcontractor.
41( 6) A payment certifier or an owner and a contractor jointly, as the case may be, shall set out in a certificate of substantial performance the date the contract was substantially performed.
41( 7) Despite subsection (6), the date a certificate of substantial performance is signed shall be deemed, for the purposes of this Act, to be the date that the contract was substantially performed.
41( 8) A payment certifier shall give a copy of a certificate of substantial performance to the owner and to the contractor within three days after the certificate is signed.
41( 9) Within seven days after receiving a copy of a certificate of substantial performance, or after signing a certificate with an owner, as the case may be, a contractor shall
apost a copy of the certificate at the office at the site of the improvement, if there is one, otherwise, in a prominent place at the site of the improvement, and
bif the regulations provide for any additional manner of publication, publish the certificate in accordance with the regulations.
41( 10) If there is a failure or refusal to certify the substantial performance of a contract within a reasonable time, any person may apply to the court, and the court, on being satisfied that the contract has been substantially performed, and on any terms as to costs or otherwise that it considers appropriate, may declare that the contract has been substantially performed.
41( 11) A declaration of substantial performance shall contain the information set out in paragraphs 42(a) to (h) and, unless the court orders otherwise, the date the declaration is made shall be deemed, for the purposes of this Act, to be the date the contract was substantially performed.
41( 12) If a person who makes an application referred to in subsection (10) is not the contractor, that person shall provide the contractor with a copy of the declaration of substantial performance within seven days after receiving it from the court.
41( 13) Within four days after receiving a copy of a declaration of substantial performance, a contractor shall
apost a copy of the declaration at the office at the site of the improvement, if there is one, otherwise, in a prominent place at the site of the improvement, and
bif the regulations provide for any additional manner of publication, publish the declaration in accordance with the regulations.
Certificate of substantial performance form
42 A certificate of substantial performance shall be in the form prescribed by regulation and shall include
athe name and address for service of the owner and of the contractor,
bthe name and address of the payment certifier, if there is one,
cthe county and local government where the land is located,
dthe civic address of the land or, if none, its location,
ea short description of the improvement,
fthe date the contract was substantially performed,
gin the case of a contract under which a lien that attaches to land may arise, a description of the land sufficient for registration, including all approved parcel identifiers,
hin the case of a contract under which a lien against a public owner’s holdback may arise, the name and address of the office or person to whom a copy of a claim for lien is required to be given under section 58, and
ithe date the certificate is signed.
Notice of certificate of substantial performance
43( 1) Any lienholder in respect of an improvement may, by written request, require the contractor to notify them that a contract has been substantially performed by giving the lienholder a copy of the certificate of substantial performance.
43( 2) A request under subsection (1) may be made before or after a certificate of substantial performance is signed.
43( 3) A contractor shall give a copy of a certificate of substantial performance to a lienholder who makes a request under subsection (1) within seven days after the request is made or, if the contract has not been substantially performed at the time the request is made, within seven days after receiving a copy of the certificate or after signing the certificate with the owner, as the case may be.
Certificate of completion of subcontract
44( 1) If there is a payment certifier in respect of a contract, at the request of the contractor or a subcontractor, the payment certifier may determine whether a subcontract has been completed.
44( 2) If a payment certifier agrees to make a determination under subsection (1), the payment certifier shall certify the completion of the subcontract by signing a certificate of completion of subcontract within seven days after the request is made or after the payment certifier determines that the subcontract has been completed, whichever is later.
44( 3) If there is no payment certifier in respect of a contract, at the request of the contractor or a subcontractor, the owner and contractor may jointly determine whether a subcontract has been completed.
44( 4) If an owner and contractor agree to make a determination under subsection (3), they shall certify the completion of the subcontract by signing a certificate of completion of subcontract within seven days after the request is made or after they determine that the subcontract has been completed, whichever is later.
44( 5) A payment certifier or an owner and a contractor jointly, as the case may be, shall set out in a certificate of completion of subcontract the date the subcontract was completed.
44( 6) Despite subsection (5), the date a certificate of completion of subcontract is signed shall be deemed, for the purposes of this Act, to be the date that the subcontract was completed.
44( 7) A payment certifier shall give a copy of a certificate of completion of subcontract to the owner, the contractor and the subcontractor whose subcontract has been certified as having been completed, within three days after the certificate is signed.
44( 8) If there is no payment certifier, an owner and contractor shall give a copy of a certificate of completion of subcontract to the subcontractor whose subcontract has been certified as having been completed, within three days after the certificate is signed.
44( 9) Within seven days after receiving a copy of a certificate of completion of subcontract, or after signing a certificate with an owner, as the case may be, a contractor shall
apost a copy of the certificate at the office at the site of the improvement, if there is one, otherwise, in a prominent place at the site of the improvement, and
bif the regulations provide for any additional manner of publication, publish the certificate in accordance with the regulations.
44( 10) If a payment certifier does not agree to make a determination under subsection (1) or agrees to make the determination but does not certify the completion of the subcontract within a reasonable time, or if there is no payment certifier and the owner and contractor do not agree to make a determination under subsection (3), or agree to make a determination but do not certify the completion of the subcontract within a reasonable time, any person may apply to the court, and the court, on being satisfied that the subcontract has been completed, and on any terms as to costs or otherwise that it considers appropriate, may declare that the subcontract has been completed.
44( 11) A declaration of completion of subcontract shall contain the information set out in paragraphs 45(a) to (i) and, unless the court orders otherwise, the date the declaration is made shall be deemed, for the purposes of this Act, to be the date the subcontract was completed.
44( 12) If a person who makes an application referred to in subsection (10) is not the contractor, that person shall provide the contractor with a copy of the declaration of completion of subcontract within seven days after receiving it from the court.
44( 13) Within four days after receiving a copy of a declaration of completion of subcontract, a contractor shall
apost a copy of the declaration at the office at the site of the improvement, if there is one, otherwise, in a prominent place at the site of the improvement, and
bif the regulations provide for any additional manner of publication, publish the declaration in accordance with the regulations.
44( 14) If services or materials are supplied under a subcontract after the date the subcontract is certified or declared to have been completed, those services or materials shall be deemed to have been supplied on or before that date.
Certificate of completion of subcontract form
45 A certificate of completion of subcontract shall be in the form prescribed by regulation and shall include
athe name and address for service of the owner, of the contractor and of the subcontractor,
bthe name and address of the payment certifier, if there is one,
cthe county and local government where the land is located,
dthe civic address of the land or, if none, its location,
ea short description of the improvement,
fa short description of the services or materials supplied under the subcontract,
gthe date the subcontract was completed,
hin the case of a subcontract under which a lien that attaches to land may arise, a description of the land sufficient for registration, including all approved parcel identifiers,
iin the case of a subcontract under which a lien against a public owner’s holdback may arise, the name and address of the office or person to whom a copy of a claim for lien is required to be given under section 58, and
jthe date the certificate is signed.
Notice of certificate of completion of subcontract
46( 1) Any lienholder in respect of an improvement may, by written request, require the contractor to notify them that a subcontract has been completed by giving the lienholder a copy of the certificate of completion of subcontract, if any, with respect to the subcontract.
46( 2) A request under subsection (1) may be made before or after a certificate of completion of subcontract is signed.
46( 3) Within seven days after a request is made under subsection (1), a contractor shall give the lienholder who made the request a copy of any certificate of completion of subcontract signed with respect to the subcontract or, if no certificate of completion of subcontract has been signed at the time the request is made, within seven days after receiving a copy of the certificate or after signing the certificate with the owner, as the case may be.
Holdback periods
47( 1) If a contract has been certified or declared to be substantially performed under section 41, the holdback required to be retained under subsection 34(1) with respect to the contract and any subcontract under the contract shall be retained for 60 days after the date the certificate of substantial performance is signed or the declaration of substantial performance is made, as the case may be.
47( 2) If a contract has not been certified or declared to be substantially performed under section 41, the holdback required to be retained under subsection 34(1) with respect to the contract and any subcontract under the contract shall be retained for 60 days after the contract is completed, abandoned or terminated.
47( 3) The holdback required to be retained under subsection 34(2) with respect to a contract and any subcontract under the contract shall be retained for 60 days after the contract is completed, abandoned or terminated.
47( 4) If a subcontract has been certified or declared to be completed under section 44, the holdback required to be retained under subsection 34(1) with respect to the subcontract and any subcontract under the subcontract shall be retained for 60 days after the date the certificate of completion of subcontract is signed or the declaration of completion of subcontract is made, as the case may be.
Holdback – payment on certification or declaration of substantial performance or completion
48( 1) If a contract has been certified or declared under section 41 to be substantially performed, the owner shall pay out the holdback required to be retained under subsection 34(1) and any funds retained on receiving a written notice of lien in accordance with section 30, if
aall liens in respect of the contract have been extinguished, discharged or otherwise provided for under this Act, and
bthe holdback period has expired.
48( 2) If a subcontract has been certified or declared under section 44 to be completed, the owner may, without jeopardy, reduce the holdback required to be retained under subsection 34(1) by paying out the amount of holdback the owner has retained in respect of the completed subcontract, if
aall liens in respect of the completed subcontract have been extinguished, discharged or otherwise provided for under this Act, and
bthe holdback period has expired.
48( 3) For greater certainty, an owner who pays an amount under subsection (2) is not liable to pay more than the amount of holdback required to be retained under subsection 34(1).
Holdback – payment on annual basis
49( 1) An owner required to retain a holdback under subsection 34(1) may make payments from the holdback on an annual basis, in relation to the services or materials supplied during the applicable annual period, if the conditions in subsection (2) are met.
49( 2) An owner may make payments from a holdback on an annual basis if
athe contract provides for a completion schedule that is longer than one year,
bthe contract provides for the making of payments from the holdback on an annual basis,
cthe contract price at the time the contract is entered into exceeds the amount prescribed by regulation, and
das of the relevant payment date,
( i) there are no claims for lien in respect of the contract
( A) registered under paragraph 55(a) or given under subparagraph 55(b)(i) or (ii), or
( B) that are the subject of an action to enforce the lien, or
( ii) all liens in respect of the contract have been extinguished, discharged or otherwise provided for under this Act.
Holdback – payment on phased basis
50( 1) An owner required to retain a holdback under subsection 34(1) may make payments from the holdback on the conclusion of phases of an improvement, in relation to the services or materials supplied during each phase, if the conditions in subsection (2) are met.
50( 2) An owner may make payments from a holdback on the conclusion of phases of an improvement if
athe contract provides for the making of payments from the holdback on a phased basis and identifies each phase,
bthe contract price at the time the contract is entered into exceeds the amount prescribed by regulation, and
cas of the relevant payment date,
( i) there are no claims for lien in respect of the contract
( A) registered under paragraph 55(a) or given under subparagraph 55(b)(i) or (ii), or
( B) that are the subject of an action to enforce the lien, or
( ii) all liens in respect of the contract have been extinguished, discharged or otherwise provided for under this Act.
50( 3) If a contract provides for the making of payments from the holdback on a phased basis but only with respect to a specified design phase, paragraph (2)(b) does not apply.
Payment of holdback – effect on lien
51 A payment made in accordance with section 35, 48, 49 or 50 extinguishes, to the extent of the amount paid, the lien of the person to whom the holdback is paid and of any person engaged by or under the person to whom the holdback is paid.
Late payment of holdback – interest
52 An owner required to retain a holdback under section 34 who does not make a payment within five days after the expiry of the relevant holdback period set out in section 47 is liable to the person entitled to payment for interest on the amount which should have been paid, at a rate prescribed by regulation, or if the court considers it appropriate to fix a rate higher or lower than the rate prescribed, at a rate of interest fixed by the court.
Direct payment to lienholder
53( 1) If an owner, contractor or subcontractor makes a payment to a lienholder for the supply of services or materials for an improvement, for which the owner, contractor, or subcontractor is not primarily liable to pay, and within three days after making the payment gives written notice of the payment to the person primarily liable to pay or to that person’s agent, the payment shall be deemed to be a payment on the contract with the person primarily liable to pay.
53( 2) A payment under subsection (1) shall not affect
athe holdback required to be retained by the owner under section 34, or
bthe amount required to be retained under subsection 31(1) on receiving a written notice of lien from a person other than the person to whom the payment is made.
NOTICE, REGISTRATION, EXTINGUISHMENT AND DISCHARGE OF LIENS
Notice to owner – certain improvements
54( 1) Subject to subsection (2), a contractor that supplies services or materials for an improvement made on or in respect of any building that is prescribed by regulation or that falls within a class prescribed by regulation and that is used or is intended to be used for residential purposes shall give the owner a notice to owner, in the form prescribed by regulation.
54( 2) This section does not apply to the following owners:
athe Crown; and
ba local government.
54( 3) A notice to owner shall contain the following information:
athe names, addresses and phone numbers of any subcontractors that have supplied or will supply services or materials for the improvement;
ba short description of the services or materials that have been supplied or are to be supplied;
ca description of the land sufficient for identification, including the civic address, if any;
da statement that
( i) the provisions of this Act apply to the supply of services or materials for the improvement,
( ii) the owner is required to retain holdbacks under section 34 of this Act and a failure to do so could result in the owner having to pay for the supply of services or materials twice, and
( iii) the persons who supply services or materials, directly or indirectly, for the improvement will, if not paid, have the right to register a claim for lien against the owner’s estate or interest in the land, even if the owner has paid the contractor in full;
ethe date the notice is signed; and
fany additional information prescribed by regulation.
54( 4) A notice to owner may be given before services or materials are supplied for the improvement but shall be given no later than 45 days after the first day services or materials are supplied.
54( 5) A notice to owner may be given
ain the manner in which personal service may be made under the Rules of Court,
bby sending the notice by registered mail to the latest known address of the owner, or
cby sending the notice by electronic means.
54( 6) A contractor that sends a notice to owner by electronic means shall request that the owner acknowledge its receipt, and the notice shall not be considered to have been given unless the contractor receives the owner’s acknowledgment of receipt.
54( 7) If, after giving an owner a notice to owner, a contractor becomes aware of a subcontractor or other person that should have been included in the notice, the contractor shall give the owner an updated notice containing the additional information within 15 days after becoming aware of the subcontractor or other person.
54( 8) If a contractor fails to give an owner a notice to owner within the time limit set out in subsection (4), the contractor is not entitled to register a claim for lien with respect to the improvement.
54( 9) The entitlement of any subcontractor or other person to register a claim for lien with respect to an improvement is not affected by any deficiency in a notice to owner or by the failure of a contractor to give a notice to owner with respect to that improvement.
54( 10) An owner entitled to receive a notice to owner under subsection (1) may require the contractor to give the notice to an additional person whom the owner has designated.
54( 11) A contractor that has given an owner a notice to owner within the time limit set out in subsection (4) is not disentitled from registering a claim for lien with respect to the improvement for failing to give
aan updated notice under subsection (7), or
ban additional notice under subsection (10).
54( 12) For greater certainty, the giving of a notice to owner within the time limit set out in subsection (4)
ais not equivalent to giving a written notice of lien in accordance with section 30,
bis not equivalent to registering a claim for lien under paragraph 55(a),
cdoes not constitute notice of a lien, including constructive notice of a lien,
ddoes not encumber the land described in the notice to owner, and
edoes not give the person who gave the notice priority over any lienholder with respect to the land described in the notice.
Registering or giving claim for lien
55 At any time after a lien arises and before the extinguishment of the lien,
ain the case of a lien that attaches to land, a claim for lien may be registered against the land or an interest in the land in the appropriate land registration office, and
bin the case of a lien against a public owner’s holdback,
( i) if the owner is the Crown, a copy of the claim for lien may be given in accordance with subsection 58(2), or
( ii) if the owner is a local government, a copy of the claim for lien may be given in accordance with subsection 58(3).
Claim for lien – contents and verifying affidavit
56( 1) A claim for lien shall be in the form prescribed by regulation.
56( 2) A claim for lien shall contain the following information:
athe name, civic address and mailing address, if different from the civic address, of
( i) the lienholder,
( ii) the owner or the person whom the lienholder or the agent of the lienholder believes to be the owner, and
( iii) the person for whom the services or materials were supplied or are to be supplied;
bin the case of a claim for lien that is being registered
( i) under the Land Titles Act, the approved parcel identifier for the land, or
( ii) under the Registry Act, a description of the land sufficient for registration;
cin the case of a claim for lien with respect to a lien against a public owner’s holdback, an address or other description sufficient to identify the location of the land;
dif applicable, a statement that a notice to owner was given to the owner and the date it was given;
ea short description of the services or materials that were supplied or are to be supplied;
fthe date or the period within which the services or materials were supplied or are to be supplied;
gthe amount claimed as due or becoming due;
han address for service of the lienholder;
ithe date the claim for lien is signed; and
jany other information prescribed by regulation.
56( 3) An affidavit in the form prescribed by regulation verifying the information referred to in subsection (2) shall accompany a claim for lien registered under paragraph 55(a) or given under subparagraph 55(b)(i) or (ii).
56( 4) An affidavit referred to in subsection (3) shall be made by the lienholder or by the lienholder’s agent or assignee, if the agent or assignee has personal knowledge of the information being verified.
56( 5) If an affidavit referred to in subsection (3) is made by an agent or assignee, it shall state that the person has personal knowledge of the information verified.
56( 6) A person who has registered a claim for lien may at any time change the address for service referred to in paragraph (2)(h) by notifying the owner and the registrar in writing.
56( 7) In the case of a claim for lien against a railway, for the purposes of subparagraph (2)(b)(ii), it is sufficient to describe the land as the land of the railway company.
Claim for lien – particular cases
57( 1) A claim for lien may include amounts claimed against different lands of the same owner.
57( 2) Any number of lienholders with liens on the same land may unite in making a claim for lien under section 56, but each person shall make a separate affidavit verifying the information in the claim for lien.
Giving claim for lien – lien against a public owner’s holdback
58( 1) The following definitions apply in this section.
“Crown corporation” means a portion of the public service of the Province specified in Part 4 of the First Schedule of the Public Service Labour Relations Act. (société de la Couronne)
“Office of the Attorney General” means the part of the Department of Justice and Office of the Attorney General that includes the Legal Services Branch, the Legislative Services Branch, the Family Crown Services Branch and the Public Prosecution Services Branch. (Cabinet du procureur général)
“public body” means a portion of the public service of the Province specified in Part 1, 2 or 3 of the First Schedule of the Public Service Labour Relations Act. (organisme public)
58( 2) In the case of a lien against a public owner’s holdback when the owner is the Crown, a copy of the claim for lien shall be given
ato a public body
( i) by leaving it at the office prescribed by regulation or with the person prescribed by regulation, if any, or
( ii) if no office or person has been prescribed by regulation, by leaving it with the Attorney General, the Deputy Attorney General, a barrister or solicitor employed in the Office of the Attorney General, or with a solicitor designated for the purpose by the Attorney General; and
bto a Crown corporation or Crown agency
( i) by leaving it at the office prescribed by regulation or with the person prescribed by regulation, if any, or
( ii) if no office or person has been prescribed by regulation, by leaving it with the chief executive officer or chief administrative officer of the Crown corporation or Crown agency.
58( 3) In the case of a lien against a public owner’s holdback when the owner is a local government, a copy of the claim for lien shall be given by leaving it with the clerk of the local government for which the highway improvement is made.
58( 4) A copy of a claim of lien referred to in subsection (2) or (3) may be given in any other manner prescribed by regulation.
58( 5) For the purposes of this Act, the giving of a copy of a claim for lien in accordance with subsection (2) or (3), or in the manner prescribed by regulation, if any, shall be the equivalent of the registration of a claim for lien under this Act.
58( 6) A copy of a claim for lien shall be given in accordance with subsection (2) or (3), or in the manner prescribed by regulation, if any, within the time limit for registering a claim for lien set out in section 59, 60 or 61, as the case may be.
Time for registering claim for lien – contractor
59( 1) A contractor may register a claim for lien for the supply of services or materials any time after the lien arises until the expiry of 60 days after the occurrence of the earlier of the following:
aa certificate of substantial performance is signed or a declaration of substantial performance is made in respect of the contract; and
bthe contract is completed, abandoned or terminated.
59( 2) If a contract has been certified or declared to be substantially performed and the owner, contractor or a subcontractor proceeds to complete it, the contractor may register a claim for lien for the supply of services or materials to complete the substantially performed contract any time after the lien arises until the expiry of 60 days after the contract is completed, abandoned or terminated.
Time for registering claim for lien – subcontractor
60( 1) A subcontractor may register a claim for lien for the supply of services or materials any time after the lien arises until the expiry of 60 days after the occurrence of the earliest of the following:
aa certificate of substantial performance is signed or a declaration of substantial performance is made in respect of the contract to which the subcontract relates;
bthe contract to which the subcontract relates is completed, abandoned or terminated;
cthe subcontractor last supplies services or materials for the improvement;
da certificate of completion of subcontract is signed or a declaration of completion of subcontract is made in respect of the subcontractor’s subcontract; and
ea certificate of completion of subcontract is signed or a declaration of completion of subcontract is made in respect of a subcontract to which the subcontractor’s subcontract relates.
60( 2) If a contract has been certified or declared to be substantially performed and the owner, contractor or a subcontractor proceeds to complete it, the subcontractor may register a claim for lien for the supply of services or materials to complete the substantially performed contract any time after the lien arises until the expiry of 60 days after the occurrence of the earliest of the following:
athe contract to which the subcontract relates is completed, abandoned or terminated;
bthe subcontractor last supplies services or materials to the improvement;
ca certificate of completion of subcontract is signed or a declaration of completion of subcontract is made in respect of the subcontractor’s subcontract; and
da certificate of completion of subcontract is signed or a declaration of completion of subcontract is made in respect of a subcontract to which the subcontractor’s subcontract relates.
Time for registering claim for lien – worker
61( 1) A worker may register a claim for lien for wages owing to the worker for the supply of services any time after the lien arises until the expiry of 60 days after the occurrence of the earliest of the following:
aa certificate of substantial performance is signed or a declaration of substantial performance is made in respect of the contract;
bthe contract is completed, abandoned or terminated;
cthe worker last supplies services for the improvement; and
da certificate of completion of subcontract is signed or a declaration of completion of subcontract is made in respect of the subcontract under or in respect of which the worker supplied services.
61( 2) If a contract has been certified or declared to be substantially performed and the owner, contractor or a subcontractor proceeds to complete it, a worker may register a claim for lien for wages owing to the worker for services supplied to complete the substantially performed contract any time after the lien arises until the expiry of 60 days after the occurrence of the earliest of the following:
athe contract is completed, abandoned or terminated;
bthe worker last supplies services for the improvement; and
ca certificate of completion of subcontract is signed or a declaration of completion of subcontract is made in respect of a subcontract under or in respect of which the worker supplied services.
Registration of claim for lien
62( 1) The registration of a claim for lien referred to in section 59, 60 or 61, as the case may be, shall be made in the appropriate land registration office.
62( 2) On receipt of the fee prescribed under the Land Titles Act or the Registry Act, as the case may be, the registrar shall register a claim for lien against the land and the lien shall appear as an encumbrance against the land or the estate or interest in land described in the claim for lien.
62( 3) When registering a claim for lien, the registrar is not required to determine whether the time limit for registering the claim for lien set out in section 59, 60 or 61, as the case may be, has expired.
Effect of registration of claim for lien
63 If a claim for lien is registered in the appropriate land registration office, the lienholder is deemed to be a purchaser of the land to the extent of the amount claimed in the claim for lien.
Extinguishment of lien that attaches to land – failure to register claim for lien or commence an action
64( 1) A lien that attaches to land is extinguished if the claim for lien has not been registered in the appropriate land registration office before the expiry of the time limit set out in section 59, 60 or 61, as the case may be.
64( 2) A lien that attaches to land that has not been extinguished as a result of the operation of subsection (1) is extinguished 90 days after the claim for lien is registered in the appropriate land registration office, unless, before the expiry of the 90-day period, a person
acommences an action to enforce
( i) the lien, or
( ii) another lien against the same land; and
bregisters a certificate of pending litigation in the form prescribed by regulation against the land in the appropriate land registration office.
Extinguishment of lien against a public owner’s holdback – failure to give copy of claim for lien or commence an action
65( 1) A lien against a public owner’s holdback is extinguished if a copy of the claim for lien has not been given in accordance with section 58 before the expiry of the time limit for registering a claim for lien set out in section 59, 60 or 61, as the case may be.
65( 2) A lien against a public owner’s holdback that has not been extinguished as a result of the operation of subsection (1) is extinguished 90 days after the date a copy of the claim for lien is given, unless, before the expiry of the 90-day period, the person making the claim for lien commences an action to enforce the lien.
Extinguishment of liens – failure to set action down for trial
66( 1) A lien is extinguished one year after an action to enforce it has been commenced unless
athe action has been set down for trial, or
ba motion has been made to the court for an order extending the time limit for setting the action down for trial and a copy of the notice of motion has been served on the defendant to the action.
66( 2) If the court makes an order extending the time limit for setting an action down for trial, the court may impose any terms and conditions and give any directions that the court considers appropriate.
66( 3) If a lien is extinguished as a result of the operation of subsection (1), a motion may be made under section 71.
Discharge of lien and certificate of pending litigation – discontinuance or dismissal of action
67( 1) Subject to subsection 93(3), if a certificate of pending litigation, in the form prescribed by regulation, has been registered in the appropriate land registration office, the clerk of the court in which the action was commenced may, on application supported by an affidavit, issue a certificate verifying
athat the action has been discontinued, or
bthat, in so far as the land affected by the lien involved in the action is concerned, the action has been dismissed or otherwise finally disposed of and the time for appeal has expired and no appeal has been commenced.
67( 2) A certificate issued under subsection (1) may be registered in the appropriate land registration office and when registered discharges
aevery lien sought to be enforced in the action, and
bevery certificate of pending litigation registered in relation to the action.
Discharge of the registration of lien that attaches to land
68( 1) The registration of a claim for lien for a lien that attaches to land may be discharged, or partially discharged, by registering a certificate of discharge in the form prescribed by regulation in the appropriate land registration office.
68( 2) A certificate of discharge shall set out any amount paid to the lienholder in satisfaction of the amount claimed in the claim for lien.
68( 3) A certificate of discharge shall be signed by the lienholder or by the lienholder’s agent duly authorized in writing and shall be verified by an affidavit of execution or an affidavit of corporate execution in the form prescribed by regulation.
Discharge of lien against a public owner’s holdback
69( 1) If the owner is the Crown, a lien against a public owner’s holdback may be discharged or partially discharged by giving a certificate of discharge in the form prescribed by regulation in the manner set out for giving a copy of a claim for lien under subsection 58(2) or, if prescribed, by any other manner prescribed by regulation.
69( 2) If the owner is a local government, a lien against a public owner’s holdback may be discharged or partially discharged by giving a certificate of discharge in the form prescribed by regulation in the manner set out for giving a copy of a claim for lien under subsection 58(3) or, if prescribed, by any other manner prescribed by regulation.
69( 3) A certificate of discharge shall set out any amount paid to the lienholder in satisfaction of the amount claimed in the claim for lien.
69( 4) A certificate of discharge shall be signed by the lienholder or by the lienholder’s agent duly authorized in writing and shall be verified by an affidavit of execution or an affidavit of corporate execution in the form prescribed by regulation.
69( 5) For the purposes of this Act, a certificate of discharge of lien given under subsection (1) or (2) shall be the equivalent of the registration of a certificate of discharge under this Act.
Court order – declaration of extinguished lien and discharge of registration
70( 1) If a lien that attaches to land has been extinguished as a result of the expiry of the time limit for registering the claim for lien or as a result of the expiry of the time limit for commencing an action and registering a certificate of pending litigation, on the application of any person without notice, the court shall declare that the lien has been extinguished and, if applicable, order that the registration of the claim for lien or of the certificate of pending litigation, or both, be discharged on the production of
aproof that the lien has been extinguished as a result of a failure
( i) to register a claim for lien within the time limit for doing so, or
( ii) to commence an action and register a certificate of pending litigation within the time limit for doing so,
ba certificate of registered ownership under the Land Titles Act, or an abstract of title under the Registry Act,
ca copy of the claim for lien that was registered, if any, with its registration particulars, and
da copy of the certificate of pending litigation that was registered, if any, with its registration particulars.
70( 2) An order under subsection (1) may be registered in the appropriate land registration office and when registered discharges the registration of the claim for lien or of the certificate of pending litigation, or of both, as the case may be.
70( 3) If a lien against a public owner’s holdback has been extinguished as a result of the expiry of the time limit for giving a copy of the claim for lien or as a result of the expiry of the time limit for commencing an action, on the application of any person without notice, the court shall declare that the lien has been extinguished on the production of
aproof that the lien has been extinguished as a result of a failure
( i) to give a copy of a claim for lien within the time limit for doing so, or
( ii) to commence an action within the time limit for doing so, and
ba copy of the claim for lien that was given, if any.
70( 4) If the court makes a declaration under subsection (1) or (3), the court shall order that,
a any amount that has been paid into court under section 72 or 73 in respect of the lien be returned to the person who paid the amount into court, and
bany security that has been posted under section 72 or 73 in respect of the lien be cancelled.
Court order – dismissal of action and discharge of registration for failure to set action down for trial
71( 1) If a lien that attaches to land has been extinguished as a result of the operation of subsection 66(1), the court, on the motion of any person, shall declare that the lien has been extinguished and shall make an order
adismissing the action to enforce that lien,
bdischarging the registration of the claim for lien, and
cdischarging the registration of the certificate of pending litigation with respect to that action.
71( 2) An order under subsection (1) may be registered in the appropriate land registration office and when registered discharges the registration of the claim for lien and of the certificate of pending litigation.
71( 3) If a lien against a public owner’s holdback has been extinguished as a result of the operation of subsection 66(1), the court, on the motion of any person, shall declare that the lien has been extinguished and shall make an order dismissing the action to enforce it.
71( 4) A motion under subsection (1) or (3) may be made without notice, but no order as to costs in the action may be made unless notice of the motion was given to the person against whom the order for costs is sought.
Court order – discharge of registration or of claim for lien on payment into court
72( 1) If a lien attaches to land, on the application, without notice, of a person who makes a payment or posts security in accordance with subsection (3), the court shall make an order
adischarging the registration of the claim for lien, and
bdischarging the registration of any certificate of pending litigation with respect to the lien.
72( 2) In the case of a lien against a public owner’s holdback, on the application without notice of a person who makes a payment or posts security in accordance with subsection (3), the court shall make an order discharging the claim for lien.
72( 3) A person making an application under subsection (1) or (2) shall pay into court, or post security with the court in an amount equal to the total of
athe full amount claimed in the claim for lien, and
b$50,000 or 25% of the amount described in paragraph (a), whichever is less, as security for costs.
72( 4) If a lien attaches to land, on the application, with notice, of a person who pays into court or posts security with the court in an amount that the court determines to be reasonable in the circumstances to satisfy the amount claimed in the claim for lien, the court may make an order
adischarging the registration of the claim for lien, and
bdischarging the registration of any certificate of pending litigation with respect to the lien.
72( 5) In the case of a lien against a public owner’s holdback, on the application, with notice, of a person who pays into court or posts security with the court in an amount that the court determines to be reasonable in the circumstances to satisfy the amount claimed in the claim for lien, the court may make an order discharging the claim for lien.
72( 6) If an amount has been paid or security has been posted under subsection (3), (4) or (5), on the application of a person, with notice to any person that the court considers appropriate, the court may order
athe reduction of the amount paid into court, and the payment of any part of the amount paid into court to the person entitled, or
bthe reduction of the amount of security posted with the court, and the delivery up of the security posted with the court for cancellation or substitution, as the case may be.
72( 7) If more than one application is made under this section for the payment into court or the posting of security with the court to obtain an order discharging the registration of one or more claims for liens in respect of the same improvement or in the case of a lien against a public owner’s holdback, an order discharging one or more claims for liens in respect of the same improvement, the court may consolidate the applications and require that the amount paid into court or security posted be adequate to satisfy all the amounts claimed in the claims for liens that are the subject of the applications, or make any other order that it considers appropriate.
72( 8) If an order discharging the registration of a claim for lien is made under subsection (1) or (4), the lien ceases to attach to the land and ceases to attach to any amount required to be held back under section 34, and becomes instead a charge on the amount paid into court or on the security posted with the court.
72( 9) If an order discharging a claim for lien is made under subsection (2) or (5), the lien against a public owner’s holdback ceases to attach to any amount required to be held back under section 34 and becomes instead a charge on the amount paid into court or on the security posted with the court.
72( 10) An order under subsection (1) or (4) discharging the registration of a claim for lien or of a certificate of pending litigation, or both, may be registered in the appropriate land registration office and when registered discharges the registration of the claim for lien or of the certificate of pending litigation, or of both, as the case may be.
72( 11) If a person’s lien has not been extinguished at the time an order is made under this section discharging the registration of the claim for lien or discharging the claim for lien, as the case may be, the person may proceed with an action to enforce the claim against the amount paid into court or the security posted, in accordance with the procedures under this Act, but no certificate of pending litigation shall be registered against the land, if otherwise applicable.
Court order – discharge of written notice of lien on payment into court
73( 1) On the application, without notice, of a person who makes a payment or posts security in accordance with subsection (2), the court shall make an order discharging a written notice of lien.
73( 2) A person making an application under subsection (1) shall pay into court, or post security with the court in an amount equal to the total of
athe full amount claimed in the written notice of lien, and
b$50,000 or 25% of the amount described in paragraph (a), whichever is less, as security for costs.
73( 3) On the application, with notice, of a person who pays into court or posts security with the court in an amount that the court determines to be reasonable in the circumstances to satisfy the amount claimed in the written notice of lien, the court may make an order discharging a written notice of lien.
Release of lien bond
74( 1) A release of lien bond, in the form prescribed by regulation, is an acceptable form of security for the purposes of subsection 72(3), (4) or (5) or subsection 73(2) or (3).
74( 2) A release of lien bond shall be issued by the following persons:
aan insurer licensed under the Insurance Act to transact guarantee insurance or surety insurance; and
bany other person or class of persons prescribed by regulation.
Court orders – invalid, exaggerated, vexatious or frivolous liens or for other proper grounds
75( 1) On the application of any person, with notice, the court may make any of the following orders:
aan order that a written notice of lien be discharged;
ban order that the registration of a claim for lien be discharged;
can order that a claim for lien be discharged;
dan order that the registration of a certificate of pending litigation be discharged;
ean order that the amount claimed in a written notice of lien or claim for lien be reduced;
fan order that any amount that has been paid into court under section 72 or 73 in respect of a lien be returned to the person who paid the amount into court;
gan order that any security that has been posted with the court under section 72 or 73 in respect of a lien be cancelled or substituted;
han order that the action to enforce a lien be dismissed; and
iany other order that the court considers appropriate.
75( 2) The court may make an order under subsection (1) if
ait is evident on the face of the written notice of lien that it is not made with respect to a valid lien;
bit is evident on the face of the claim for lien that it is not made with respect to a valid lien;
cthe claim for lien does not relate to the land it is registered against;
dthe amount claimed in the written notice of lien is an exaggerated amount;
ethe amount claimed in the claim for lien is an exaggerated amount;
fthe written notice of lien is vexatious, frivolous or an abuse of process; and
gthe claim for lien is vexatious, frivolous or an abuse of process.
75( 3) In addition to the grounds set out in paragraphs (2)(a) to (g), the court may make an order under subsection (1) on any other proper ground.
75( 4) An order under subsection (1) discharging the registration of a claim for lien or of a certificate of pending litigation, or of both, may be registered in the appropriate land registration office and when registered discharges the registration of the claim for lien or of the certificate of pending litigation, or of both, as the case may be.
Liability for exaggerated claims
76 Any person who gives a written notice of lien, registers a claim for lien or gives a claim for lien in the case of a lien against a public owner’s holdback, in any of the following circumstances, is liable, in addition to any other ground on which the person may be liable, to any person who suffers damages as a result:
athe person knows or ought to know that the amount claimed in the written notice of lien or in the claim for lien, as the case may be, has been exaggerated; or
bthe person knows or ought to know that the person does not have a lien.
PRIORITIES
Death of lienholder
77 The rights of a lienholder pass on the person’s death to the person’s personal representative.
Assignment
78 The rights of a lienholder may be assigned by an instrument in writing.
Enforcement of lien – incomplete, abandoned or terminated contract or subcontract
79 Subject to section 25, a lienholder is entitled to enforce the lien even if the contract or subcontract was not completed by or was abandoned or terminated by the contractor or subcontractor under whom the lienholder claims.
Priority of liens
80( 1) A lien has priority over
aall judgments, executions, assignments and receiving orders recovered, issued or made after the lien arises, and
bsubject to subsection (2), all claims under conveyances, mortgages and other charges, and agreements for sale of land made by the owner before or after the lien arises.
80( 2) If a conveyance, mortgage, other charge or agreement for sale is registered in the appropriate land registration office before the registration of a claim for lien, any payment or advance made because of that conveyance, mortgage, charge or agreement has priority over a lien if it is made before the registration of a claim for lien or before notice of the lien has been given in writing to the person making the payment or advance, but has priority only to the extent that the total of all payments or advances made by the person, including that specific payment or advance, does not exceed the value of the land at the time the payment or advance is made.
80( 3) A notice under subsection (2) shall be in the form prescribed by regulation.
80( 4) If an owner has an estate or interest in land as purchaser under an agreement for sale and the purchase money or part of the purchase money is unpaid, the vendor has priority over a lien only to the extent of the value of the land at the time the lien arose.
Priority between lienholders
81( 1) Subject to this section, no lienholder has any priority or preference over another lienholder.
81( 2) Subject to subsections (3) and (4), the proceeds of any sale shall be distributed among the lienholders pro rata.
81( 3) Liens for wages have priority over all other liens to the extent of 30 days’ wages.
81( 4) All liens for wages have equal priority.
Acts not prejudicial to lien
82( 1) Unless a lienholder agrees in writing that any of the following shall have that effect, a lien is not discharged, paid, prejudiced, merged or extinguished by
a the taking of any security for the amount of the lien,
bthe acceptance of any promissory note for the amount of the lien,
cthe taking of any other acknowledgement of the amount of the lien,
dthe giving or extending of time for payment of the amount of the lien,
ethe taking of any proceedings for recovery of the amount of the lien, or
fthe recovery of any personal judgment for the amount of the lien.
82( 2) Subject to subsections (3) and (4), the discounting or negotiation of a promissory note or other security taken or accepted for the amount claimed in a claim for lien does not discharge, pay, prejudice, merge or extinguish the lien but the lienholder who takes or accepts the promissory note or other security shall retain the lien for the benefit of the holder of the promissory note or other security.
82( 3) In order to obtain the benefit of this section, a person who has given or extended the time for payment of any amount claimed in a claim for lien shall commence an action to enforce the lien within the time limit for commencing an action under this Act and shall register a certificate of pending litigation in the appropriate land registration office, if applicable, but no further steps shall be taken in the action until the expiry of the time for payment of the amount claimed in the claim for lien.
82( 4) Nothing in subsection (3) relieves a person from the requirement to set an action down for trial within the time limit set out in subsection 66(1).
82( 5) Even though a person has given or extended the time for payment of any amount claimed in a claim for lien, the person may, if an action is commenced by another person to enforce a lien against the same land, prove and obtain payment in that action of the amount claimed as if no time had been given or extended for payment of that amount.
SURETY BONDS
Labour and material payment bonds and performance bonds – Crown and local governments
83( 1) Subject to subsection (3), this section applies to a contract between an owner that is the Crown or a local government and a contractor with respect to an improvement, if the contract price exceeds the amount prescribed by regulation.
83( 2) Subject to subsection (3), this section applies to a contract with respect to an improvement with a contract price that does not exceed the amount prescribed by regulation if the owner is the Crown and requires the contractor to provide a labour and material payment bond and a performance bond on entering into the contract.
83( 3) This section does not apply to a contractor who is an architect or an engineer.
83( 4) On entering into a contract, a contractor shall provide an owner with
aa labour and material payment bond, in the form prescribed by regulation, and
ba performance bond, in the form prescribed by regulation.
83( 5) A labour and material payment bond shall meet the following requirements:
abe issued by
( i) an insurer licensed under the Insurance Act to transact guarantee insurance or surety insurance, or
( ii) any other person or class of persons prescribed by regulation;
bhave a coverage limit of at least
( i) 50% of the contract price, or
( ii) the percentage of the contract price that is prescribed by regulation, if prescribed; and
cextend protection to
( i) subcontractors of the contractor and to other persons who supply services or materials to the contractor for the improvement, and
( ii) any other person or class of persons prescribed by regulation, up to an amount determined in accordance with the regulations.
83( 6) A performance bond shall meet the following requirements:
abe issued by
( i) an insurer licensed under the Insurance Act to transact guarantee insurance or surety insurance, or
( ii) any other person or class of persons prescribed by regulation; and
bhave a coverage limit of at least
( i) 50% of the contract price, or
( ii) the percentage of the contract price that is prescribed by regulation, if prescribed.
83( 7) The form prescribed by regulation for a labour and material payment bond or for a performance bond may set out the claims process applicable in respect of the bond.
83( 8) For greater certainty, this section does not limit the ability of an owner to require a contractor to provide other types of bonds or security.
Labour and material payment bonds and performance bonds – special purpose entity
84( 1) Subject to subsection (2), this section applies to a contract between a special purpose entity that is deemed under subsection 6(3) to be the owner in place of the Crown or a local government and a contractor with respect to an improvement, if the contract price exceeds the amount prescribed by regulation.
84( 2) This section does not apply to a contractor who is an architect or an engineer.
84( 3) On entering into a contract, a contractor shall provide an owner with
aa labour and material payment bond, in the form prescribed by regulation, and
ba performance bond, in the form prescribed by regulation.
84( 4) A labour and material payment bond shall meet the following requirements:
abe issued by
( i) an insurer licensed under the Insurance Act to transact guarantee insurance or surety insurance, or
( ii) any other person or class of persons prescribed by regulation;
bhave a coverage limit
( i) in an amount equal to 50% of the contract price, if the contract price does not exceed the amount prescribed by regulation, or
( ii) in the amount prescribed by regulation, if the contract price exceeds the amount prescribed by regulation; and
cextend protection to
( i) subcontractors of the contractor and to other persons who supply services or materials to the contractor for the improvement, and
( ii) any other person or class of persons prescribed by regulation, up to an amount determined in accordance with the regulations.
84( 5) A performance bond shall meet the following requirements:
abe issued by
( i) an insurer licensed under the Insurance Act to transact guarantee insurance or surety insurance, or
( ii) any other person or class of persons prescribed by regulation; and
bhave a coverage limit
( i) in an amount equal to 50% of the contract price, if the contract price does not exceed the amount prescribed by regulation, or
( ii) in the amount prescribed by regulation, if the contract price exceeds the amount prescribed by regulation.
84( 6) Despite paragraphs (4)(b) and (5)(b), the Crown or a local government that, as the owner, has entered into a project agreement with a special purpose entity may require a labour and material payment bond or performance bond to have a coverage limit in excess of the amount determined under subparagraph (4)(b)(i) or (ii) or (5)(b)(i) or (ii).
84( 7) In setting a coverage limit under subsection (6), the Crown or local government, as the case may be, shall have regard to the cost of obtaining security.
84( 8) The form prescribed by regulation for a labour and material payment bond or for a performance bond may set out the claims process applicable in respect of the bond.
84( 9) For greater certainty, this section does not limit the ability of an owner to require a contractor to provide other types of bonds or security.
Notice of labour and material payment bond and performance bond
85( 1) A contractor who is required under section 83 or 84 to provide an owner with a labour and material payment bond and a performance bond in respect of an improvement shall post a notice to that effect in a prominent place at the site of the improvement.
85( 2) A notice in subsection (1) shall contain the following information:
aa statement that there are bonds in place in respect of the improvement;
bthe name of the surety for each bond;
cthe amount of each bond; and
dthe time limits for submitting a claim to a surety to be eligible to recover against a bond.
Rights of action – default on labour and material payment bond or performance bond
86( 1) If a labour and material payment bond is in effect in respect of an improvement and the principal on the bond defaults in making a payment guaranteed by the bond, any person to whom the payment is guaranteed has a right of action to recover the amount of the person’s claim against the surety and the principal, in accordance with the terms and conditions of the bond.
86( 2) If a performance bond is in effect in respect of an improvement and the contractor defaults in performing the contract guaranteed by the bond, the owner has a right of action to enforce the bond against the surety and the contractor, in accordance with the terms and conditions of the bond.
86( 3) Nothing in this section makes a surety liable for an amount in excess of the amount that the surety undertakes to pay under a bond, and the surety’s liability under the bond shall be reduced by and to the extent of any payment made in good faith by the surety either before or after judgment is obtained against the surety.
86( 4) Nothing in this section makes a surety liable as a principal under a bond, or makes a surety a party to any contract.
86( 5) On satisfaction of its obligation to any person under a bond to which this section applies, a surety shall be subrogated to all the rights of that person.
RIGHT TO INFORMATION
Right to information
87( 1) A lienholder or a beneficiary of a trust fund created under subsection 11(2) or subsection 14(1) or (4) or a person who is a mortgagee may, at any time, by written request, require,
afrom the owner or the contractor,
( i) the names of the parties to the contract,
( ii) the contract price,
( iii) a copy of any labour and material payment bond provided by the contractor to the owner in respect of the contract,
( iv) a statement of whether the contract provides that payment under the contract shall be based on the conclusion of specified phases or on the reaching of other milestones,
( v) the name and address of the financial institution at which a holdback trust account has been established, if applicable, and the name of the account holder,
( vi) a statement setting out payments deposited into and withdrawn from any holdback trust account, including the dates of the deposits and withdrawals, the accrued interest and the balance of the account on the date the information is provided, and
( vii) the state of accounts between the owner and the contractor containing the information required under subsection (3),
bfrom the owner, if the owner is the Crown or a local government, the names and addresses of any lienholder in respect of an improvement or a highway improvement, as the case may be, who has given a copy of a claim for lien to the owner,
cfrom the contractor or a subcontractor,
( i) the names of the parties to a subcontract,
( ii) a copy of any labour and material payment bond provided by a subcontractor to the contractor in respect of a subcontract, or by a subcontractor to another subcontractor,
( iii) a statement of whether there is a provision in a subcontract providing for certification of completion of the subcontract,
( iv) a statement of whether a subcontract has been certified as complete, and
( v) a state of accounts between the contractor and a subcontractor, or between a subcontractor and another subcontractor, containing the information required under subsection (3),
dfrom an owner who is selling the owner’s estate or interest in land in respect of which an improvement is made,
( i) the name and address of the purchaser,
( ii) the purchase price,
( iii) the amount of the purchase price paid or to be paid before the conveyance, and
( iv) the scheduled date of the conveyance and a legal description of the land, including all approved parcel identifiers and addresses for the land, and
efrom a landlord, in the case of a lien in respect of a leasehold,
( i) the names of the parties to the lease,
( ii) if payment for all or part of the improvement is accounted for under the terms of the lease or any renewal of it, or under any agreement to which the landlord is a party that is connected to the lease, the amount of that payment, and
( iii) the state of accounts between the landlord and the tenant containing the information required under subsection (3).
87( 2) A lienholder or a beneficiary of a trust fund created under subsection 11(2) or subsection 14(1) or (4) may, at any time, by written request, require from a mortgagee or unpaid vendor
asufficient details concerning any mortgage on the estate or interest in land on or in respect of which an improvement is made, to enable the person who requests the information to determine whether the mortgage was taken by the mortgagee for the purposes of financing the making of the improvement,
ba statement showing the amounts
( i) advanced under the mortgage, the dates of those advances, and any arrears in payment including any arrears in the payment of interest, or
( ii) secured under the agreement of purchase and sale and any arrears in payment including any arrears in the payment of interest.
87( 3) A state of accounts under subsection (1) shall contain the following information, as of a specified date:
athe contract price or subcontract price, as the case may be, of the services or materials that have been supplied under the contract or subcontract;
bthe amounts paid under the contract or subcontract;
cin the case of a state of accounts under subparagraph (1)(e)(iii), the amounts paid under the contract or subcontract that constitute part of the payment referred to in subparagraph (1)(e)(ii);
dthe amount of the applicable holdbacks;
ethe balance owed under the contract or subcontract;
fany amount retained as a set-off under subsection 12(3), 15(3) or (4) or 25(4); and
gany other information prescribed by regulation.
87( 4) A person who receives a written request for information under subsection (1) or (2) shall provide the information within 21 days after receiving the request.
87( 5) A person who does not provide the information requested within the time limit set out in subsection (4), or who knowingly or negligently misstates that information, is liable to the person who made the request for any damages suffered as a result.
Court order – failure to provide requested information
88 On application, the court may at any time, whether or not an action has been commenced, order a person to comply with a written request that has been made to the person under section 87 and, when making the order, the court may make any order as to costs that it considers appropriate in the circumstances.
Examination on a claim for lien
89( 1) A person who has signed an affidavit verifying the information in a claim for lien may be examined at any time on the claim for lien, without an order, whether or not an action has been commenced.
89( 2) Only one examination may be held under subsection (1) but the following persons are entitled to participate:
athe contractor;
bthe person who is liable to pay for the supply of services or materials giving rise to the claim for lien; and
cevery person named in the claim for lien who has an interest in the land.
89( 3) A person intending to examine a person under subsection (1) shall give a notice of examination on a claim for lien in the form prescribed by regulation at least seven days before the date of the examination, specifying the date, time and location of the examination and any other information prescribed by regulation to
athe person to be examined or the person’s solicitor,
bthe contractor,
cthe person who is liable to pay for the supply of services or materials giving rise to the claim for lien, and
devery person named in the claim for lien who has an interest in the land, other than the person to be examined.
89( 4) To the extent that they are not inconsistent with this section, the Rules of Court apply to an examination under subsection (1).
JURISDICTION AND PROCEDURE
Procedure for enforcing claims for lien
90( 1) A claim for lien may be enforced by an action in the court.
90( 2) To the extent that they are not inconsistent with this Act and the regulations, the Rules of Court apply to actions under this Act.
Notice required for actions against the Crown
91( 1) No action shall be brought against the Crown under this Act unless notice of the action is served in accordance with section 15 of the Proceedings Against the Crown Act.
91( 2) For the purposes of subsection (1), the time for serving notice of an action in section 15 of the Proceedings Against the Crown Act shall be read as 30 days.
91( 3) If a notice is served before the expiry of the time limit for commencing an action to enforce a lien set out in subsection 65(2), and the 30-day period referred to in subsection (2) ends after the expiry of that time limit, the time limit for commencing the action is extended by seven days after the end of the 30-day period.
Notice of trial
92( 1) Subject to subsection (2), at least 30 days before the date set for a trial, the party who sets an action down for trial shall serve a notice of trial in the form prescribed by regulation on every lienholder who has registered a claim for lien or, in the case of a lien against a public owner’s holdback, on every lienholder who has given a claim for lien, and on every other person who has a registered charge, encumbrance or claim on the land affected by the lien, who is not a party or who, being a party, appears personally in the action.
92( 2) A notice of trial is required to be served only on those persons who have not been previously served with a notice of trial under the Rules of Court with respect to the same action.
92( 3) Despite subsection (1), the court may direct that the time limit for serving a notice of trial be shortened.
92( 4) A notice of trial shall be served in the manner in which personal service may be made under the Rules of Court.
92( 5) Despite subsection (4), the court may direct that a notice of trial be served on a person who is not a party to the action in a manner other than by personal service.
Action to benefit other lienholders
93( 1) It is not necessary for a lienholder who commences an action to enforce a lien to make other lienholders parties to the action, but every lienholder who has registered or given a claim for lien and who has been served with a notice of trial under section 92 with respect to the action shall, for all purposes, be deemed to be a party to the action.
93( 2) Any number of lienholders claiming liens on the same land may join in an action, and an action commenced by a lienholder claiming a lien shall be deemed to be brought on behalf of all other lienholders on the land in question whose time limit for commencing an action has not expired.
93( 3) An action to enforce a lien shall not be discontinued unless a motion has been made to the court for an order and a copy of the notice of motion has been served on every lienholder who would be affected.
93( 4) If a lienholder who has commenced an action to enforce a lien makes a motion under subsection (3) to discontinue the action and a lienholder who has been deemed a party to the action under subsection (1) wishes to continue it, the court may give directions with respect to continuing the action.
Statement of claim – lienholder who does not commence action
94( 1) Within 20 days after being served with a notice of trial under section 92, a lienholder claiming a lien who did not commence the action to enforce the lien shall file a statement in the court showing the grounds and particulars of the claim.
94( 2) Unless the court orders otherwise, a lienholder who fails to file a statement within the time limit in subsection (1) cannot enforce the lien.
Disposition by the court
95( 1) The court shall
atry an action and all questions that arise in the action or that are necessary to be tried in order to dispose of the action and to adjust the rights and liabilities of the persons appearing before it or on whom notice of trial has been served, and
btake all accounts, make all inquiries, give all directions and do all things necessary to dispose of the action and all matters, questions and accounts that arise in the action or at the trial and to adjust the rights and liabilities of, and give all necessary relief to, all parties to the action.
95( 2) The court may award a person claiming a lien a personal judgment, whether the person establishes a valid lien or not, on any ground relating to the claim that is disclosed by the evidence against any party to the action for any amount that may be due to the person claiming the lien and that the person might have recovered in an action against that party, subject to any conditions as to enforcement that the court directs.
95( 3) The court may order that the estate or interest in land on which a lien attaches be sold by a sheriff in any manner permitted by the Enforcement of Money Judgments Act, and make all necessary orders for the completion of the sale and the vesting in the purchaser of the estate or interest sold and may order that any materials supplied for the improvement be sold.
95( 4) Unless otherwise ordered by the court, the proceeds of a sale shall be paid into court to the credit of the action and the court shall direct to whom the proceeds shall be paid in accordance with the priorities established by this Act and may add to the claim of a lienholder the actual disbursements properly incurred by the lienholder in connection with the sale.
95( 5) If the proceeds of a sale are insufficient to satisfy the judgment and costs, the court shall determine the amount of the deficiency and the parties who are entitled to recover the deficiency, and may award personal judgment in the appropriate amount to each of those parties against each person found liable to pay those amounts.
95( 6) If the proceeds of a sale are insufficient to satisfy an owner’s liability, the court may award personal judgment against the owner of the land to the extent of the deficiency in the holdback in favour of the persons claiming liens.
95( 7) The court may make one or more interim orders for the distribution of proceeds paid into court.
Judgment in form prescribed
96( 1) The results of a trial shall be embodied in a judgment in the form prescribed by regulation for an action to enforce a lien that attaches to land or in the form prescribed by regulation for an action to enforce a lien against a public owner’s holdback, as the case may be.
96( 2) The court may vary the prescribed form of judgment in order to meet the circumstances of a case or to afford any party to an action any right or remedy in the judgment to which the party is entitled.
Consolidation of actions
97 If more than one action is commenced to enforce liens against the same land, on the application of a party to any of the actions or on the application of any other interested person, the court may order the consolidation of the actions and may give directions to avoid unnecessary costs or delay.
Apportionment of amounts claimed
98 If, in an action to enforce a lien, amounts are claimed against different lands of the same owner, the court may equitably apportion the amounts claimed among the owner’s lands.
Stay of proceedings – effect of arbitration
99( 1) Despite the Arbitration Act, the International Commercial Arbitration Act or the equivalent legislation of any other jurisdiction, a stay of proceedings granted by any court of competent jurisdiction to assist the conduct of an arbitration does not prohibit the taking of any step under this Act to
aregister a claim for lien,
bgive a claim for lien,
cprevent the extinguishment of a lien,
dpreserve the land or the improvement to which a lien attaches, or both, or to preserve any estate or interest in the land or the improvement, or
epreserve any fund or form of security that is charged with a lien.
99( 2) Despite the Arbitration Act, the International Commercial Arbitration Act or the equivalent legislation of any other jurisdiction, if the contract or subcontract of a person claiming a lien contains a provision respecting arbitration, the taking of any step described in subsection (1) does not constitute a waiver of the person’s rights to arbitrate a dispute under the contract or subcontract.
99( 3) Despite the Arbitration Act, the International Commercial Arbitration Act or the equivalent legislation of any other jurisdiction,
aan action to enforce a lien that is commenced by a person claiming a lien whose contract or subcontract does not provide for arbitration is not stayed by the commencement or continuation of arbitration proceedings between other parties with respect to a matter that, in whole or in part, deals with the subject-matter of the action, and
bno order shall be made directing a stay of an action referred to in paragraph (a) solely on the grounds that arbitration proceedings have been commenced or continued between other parties with respect to a matter that, in whole or in part, deals with the subject-matter of that action.
MISCELLANEOUS
Costs
100( 1) Subject to subsection (3), any order as to the costs of an action, application, motion or of any step in a proceeding under this Act is in the discretion of the court, and an order as to costs may be made against
aa party, or
ba person who represented a party, if the person
( i) knowingly participated in the registration or giving of a claim for lien, the registration of a certificate of pending litigation or the commencement of an action to enforce a lien,
( ii) represented a party at the trial of an action, where it was clear that the claim for lien was without foundation, was frivolous, vexatious or an abuse of process or was for an exaggerated amount, or that the lien had been extinguished, or
( iii) prejudiced or delayed the conduct of the action.
100( 2) An order under subsection (1) may be made on a solicitor and client basis.
100( 3) If the least expensive course is not taken by a party, the costs allowed to the party shall not exceed what would have been incurred had the least expensive course been taken.
100( 4) When a claim for lien is discharged under this Act or when judgment is given in favour of or against a claim for lien, the court may allow a reasonable amount for the costs of drawing and registering the claim for lien or for discharging the registration of the claim for lien.
Giving or serving documents
101( 1) Unless otherwise provided under this Act or the regulations, a notice, certificate or other document that is required to be given to a person or served on a person shall be
aserved in the manner in which personal service may be made under the Rules of Court, or
bsent by registered mail to
( i) the person’s address for service, if any, or
( ii) the latest known address of the person.
101( 2) In the absence of evidence to the contrary, service by registered mail shall be deemed to be effective three days after the date of mailing of the notice, certificate or other document.
101( 3) For the purposes of subsection (2), the date appearing on the registered mail postal registration receipt is the date of mailing.
Substantial compliance
102( 1) No written notice of lien, certificate of substantial performance, certificate of completion of subcontract, notice to owner or claim for lien is invalidated by reason only of a failure to comply strictly with section 30, 42, 45, 54 or 56, as the case may be, unless in the opinion of the court, a person is prejudiced by the failure, and then only to the extent of the prejudice.
102( 2) Nothing in this section dispenses with the requirement of registering a claim for lien under paragraph 55(a) or of giving a copy of a claim for lien under subparagraph 55(b)(i) or (ii), as the case may be.
102( 3) If, in the opinion of the court, some person has been prejudiced by a failure to comply with one or more of the sections set out in subsection (1), the court may allow any amendments to be made to the relevant form to comply with the section and to permit the action to be tried, without prejudice to any person.
Regulations
103( 1) The Lieutenant-Governor in Council may make regulations
aprescribing persons or classes of persons for the purposes of paragraph (d) of the definition “financial institution” in section 1;
bprescribing provisions for the purposes of paragraph 6(3)(g);
cprescribing an amount for the purposes of subsection 24(1);
dprescribing an amount for the purposes of subsection 24(2);
eprescribing the form and content of a notice referred to in subsection 28(3);
fprescribing the form of a written notice of lien;
gprescribing the form and content of an affidavit referred to in subsection 30(3);
hprescribing the form and content of a notice of withdrawal;
iprescribing persons or classes of persons for the purposes of subparagraph 37(1)(c)(i);
jprescribing an amount for the purposes of subparagraph 37(1)(c)(ii);
kprescribing the form and content of an irrevocable standby letter of credit referred to in paragraph 39(a);
lprescribing the form and content of a holdback release bond referred to in paragraph 39(b);
mprescribing methods of retaining a holdback for the purposes of paragraph 39(c);
nproviding for the manner of publishing a certificate of substantial performance;
oproviding for the manner of publishing a declaration of substantial performance;
pprescribing the form of a certificate of substantial performance;
qproviding for the manner of publishing a certificate of completion of subcontract;
rproviding for the manner of publishing a declaration of completion of subcontract;
sprescribing the form of a certificate of completion of subcontract;
tprescribing an amount for the purposes of paragraph 49(2)(c);
uprescribing an amount for the purposes of paragraph 50(2)(b);
vprescribing a rate of interest for the purposes of section 52;
wprescribing buildings and classes of buildings for the purposes of subsection 54(1);
xprescribing the form of a notice to owner;
yprescribing information for the purposes of paragraph 54(3)(f);
zprescribing the form of a claim for lien;
aaprescribing information for the purposes of paragraph 56(2)(j);
bbprescribing the form and content of an affidavit referred to in subsection 56(3);
ccprescribing offices or persons for the purposes of subparagraph 58(2)(a)(i);
ddprescribing offices or persons for the purposes of subparagraph 58(2)(b)(i);
eeprescribing the manner of giving a claim for lien;
ffprescribing the form and content of a certificate of pending litigation;
ggprescribing the form and content of a certificate of discharge;
hhprescribing the form and content of an affidavit of execution and of an affidavit of corporate execution;
iiprescribing the form and content of a release of lien bond;
jjprescribing persons or classes of persons for the purposes of paragraph 74(2)(b);
kkprescribing the form and content of a notice of a lien referred to in subsection 80(2);
llprescribing an amount for the purposes of subsections 83(1) and (2);
mmprescribing the form and content of a labour and material payment bond;
nnprescribing the form and content of a performance bond;
ooprescribing persons or classes of persons for the purposes of subparagraph 83(5)(a)(ii);
ppprescribing a percentage for the purposes of subparagraph 83(5)(b)(ii);
qqprescribing persons or classes of persons for the purposes of subparagraph 83(5)(c)(ii);
rrprescribing a method for determining an amount for the purposes of subparagraph 83(5)(c)(ii);
ssprescribing persons or classes of persons for the purposes of subparagraph 83(6)(a)(ii);
ttprescribing a percentage for the purposes of subparagraph 83(6)(b)(ii);
uuprescribing an amount for the purposes of subsection 84(1);
vvprescribing persons or classes of persons for the purposes of subparagraph 84(4)(a)(ii);
wwprescribing the contract price amount for the purposes of subparagraphs 84(4)(b)(i) and (ii);
xxprescribing the coverage limit amount for the purposes of subparagraph 84(4)(b)(ii);
yyprescribing persons or classes of persons for the purposes of subparagraph 84(4)(c)(ii);
zzprescribing a method for determining an amount for the purposes of subparagraph 84(4)(c)(ii);
aaaprescribing persons or classes of persons for the purposes of subparagraph 84(5)(a)(ii);
bbbprescribing the contract price amount for the purposes of subparagraphs 84(5)(b)(i) and (ii);
cccprescribing the coverage limit amount for the purposes of subparagraph 84(5)(b)(ii);
dddprescribing information for the purposes of paragraph 87(3)(g);
eeeprescribing the form of a notice of examination on a claim for lien;
fffprescribing information for the purposes of subsection 89(3);
gggprescribing the form and content of a notice of trial;
hhhprescribing the form and content of a judgment for an action to enforce a lien that attaches to land and for an action to enforce a lien against a public owner’s holdback;
iiidefining words and expressions used in this Act but not defined in this Act for the purposes of this Act, the regulations or both.
103( 2) A regulation made under subsection (1) may vary for or be made in respect of different persons, matters or things or different classes or categories of persons, matters or things.
SAVING AND TRANSITIONAL PROVISIONS
Continued application of the Mechanics’ Lien Act and regulations under that Act
104( 1) This Act and the regulations under this Act apply to
aall contracts entered into on or after the commencement of this section,
ball subcontracts under a contract referred to in paragraph (a), and
cthe supply of services or materials under a contract referred to in paragraph (a) or a subcontract referred to in paragraph (b).
104( 2) Despite the repeal of the Mechanics’ Lien Act, chapter M-6 of the Revised Statutes, 1973, and of New Brunswick Regulation 83-210 under that Act, and despite any inconsistency with the provisions of this Act and any regulation under this Act, the provisions of that Act and regulation, as they existed immediately before the commencement of this section, continue to apply to
aall contracts entered into before the commencement of this section,
ball subcontracts under a contract referred to in paragraph (a), and
cthe supply of services or materials under a contract referred to in paragraph (a) or a subcontract referred to in paragraph (b).
104( 3) Despite the repeal of the Mechanics’ Lien Act, chapter M-6 of the Revised Statutes, 1973, and of New Brunswick Regulation 83-210 under that Act, and despite any inconsistency with the provisions of this Act and any regulation under this Act, if a contract entered into before the commencement of this section is amended in good faith on or after the commencement of this section, the provisions of that Act and regulation, as they existed immediately before the commencement of this section, continue to apply to
athe amended contract,
ball subcontracts under an amended contract referred to in paragraph (a), and
cthe supply of services or materials under an amended contract referred to in paragraph (a) or a subcontract referred to in paragraph (b).
104( 4) For greater certainty, despite the repeal of the Mechanics’ Lien Act, chapter M-6 of the Revised Statutes, 1973, and of New Brunswick Regulation 83-210 under that Act, and despite any inconsistency with the provisions of this Act and any regulation under this Act, an action may be commenced, dealt with and concluded under the provisions of that Act and regulation, as they existed immediately before the commencement of this section, with respect to
aall contracts entered into before the commencement of this section,
ball subcontracts under a contract referred to in paragraph (a), and
cthe supply of services or materials under a contract referred to in paragraph (a) or a subcontract referred to in paragraph (b).
104( 5) Nothing in this section makes the provisions of the Mechanics’ Lien Act, chapter M-6 of the Revised Statutes, 1973, and of New Brunswick Regulation 83-210 under that Act, apply to contracts entered into before the commencement of this section that were not subject to that Act immediately before the commencement of this section.
Continued application of provisions of the Crown Construction Contracts Act
105( 1) Despite section 107 of this Act, and despite any inconsistency with the provisions of this Act and any regulation under this Act, the following provisions of the Crown Construction Contracts Act, as they existed immediately before the commencement of this section, continue to apply to all contracts to which that Act applies, entered into before the commencement of this section, and to all subcontracts under those contracts:
athe definition of “payment bond” in section 1;
bsection 6;
csection 7;
dparagraph 8(i).
105( 2) For greater certainty, an action under section 6 of the Crown Construction Contracts Act, with respect to a contract to which that Act applies, entered into before the commencement of this section, or with respect to a subcontract under such a contract may be commenced, dealt with and concluded as if section 6 of that Act had not been repealed.
Continued application of provisions of regulation under the Crown Construction Contracts Act
106 Despite section 108 of this Act, and despite any inconsistency with any provision of this Act and any regulation under this Act, the following provisions of New Brunswick Regulation 82-109 under the Crown Construction Contracts Act, as they existed immediately before the commencement of this section, continue to apply to all contracts to which that Act and the regulations under that Act apply, entered into before the commencement of this section, and to all subcontracts under those contracts:
asubsection 15(4);
bsection 17;
csection 18;
dsection 19;
eparagraph 21(4)(a).
CONSEQUENTIAL AND CONDITIONAL AMENDMENTS,
REPEALS AND COMMENCEMENT
Crown Construction Contracts Act
107 The Crown Construction Contracts Act, chapter 105 of the Revised Statutes, 2014, is amended
a in section 1 by repealing the definition “payment bond”;
bby adding after section 2 the following:
Forms
2.1( 1) A contract to which this Act and the regulations apply
ashall be made in the Short Form Contract or the Standard Construction Contract, if the amount of the accepted tender does not exceed the amount prescribed by regulation, or
bshall be made in the Standard Construction Contract, if the amount of the accepted tender is greater than the amount prescribed by regulation.
2.1( 2) With the approval of the Treasury Board, the Minister of Transportation and Infrastructure may prescribe the form and content of the Short Form Contract and the Standard Construction Contract, which may vary according to the class of contracts.
2.1( 3) Despite subsection (1), if, in the opinion of the Minister of Transportation and Infrastructure, it is not appropriate to use the Short Form Contract or the Standard Construction Contract for the making of a contract to which this Act and the regulations apply, the Minister may, with the approval of the Treasury Board, prescribe the form and content of an alternate form.
2.1( 4) The Minister of Transportation and Infrastructure shall cause the Short Form Contract, the Standard Construction Contract and any alternate form made under subsection (3) to be made available to the public in the form and the manner that the Minister considers appropriate.
2.1( 5) In the Short Form Contract, the Standard Construction Contract, and any alternate form made under subsection (3), the Crown may collect personal information either directly from an individual to whom the information relates or indirectly from another person.
2.1( 6) The Regulations Act does not apply to the form and content of the Short Form Contract, the Standard Construction Contract and any alternate form made under subsection (3).
2.1( 7) If there is a conflict or an inconsistency between the Short Form Contract, the Standard Construction Contract or an alternate form made under subsection (3) and this Act or any regulation made under this Act, this Act or the regulation made under this Act prevails.
cby repealing the heading “Payment bond” preceding section 6;
dby repealing section 6;
eby repealing the heading “Withholding of payment by Crown” preceding section 7;
fby repealing section 7;
gin section 8
( i) by adding after paragraph (e) the following:
e.1prescribing an amount for the purposes of subsection 2.1(1);
( ii) by repealing paragraph (i).
Regulation under the Crown Construction Contracts Act
108 New Brunswick Regulation 82-109 under the Crown Construction Contracts Act is amended
aby adding after section 4 the following:
4.1 The amount prescribed for the purposes of subsection 2.1(1) of the Act is $100,000.
bby repealing section 5;
cby repealing subsection 15(4) and substituting the following:
15( 4) A bid bond submitted pursuant to this section shall provide that if the tenderer is awarded the contract, a labour and material payment bond and performance bond shall be supplied to the Crown in accordance with the provisions of section 83 of the Construction Remedies Act by the same or another surety company.
dby repealing section 17;
eby repealing section 18;
fby repealing section 19;
gby repealing paragraph 21(4)(a) and substituting the following:
a provide a labour and material payment bond and performance bond in the amount stipulated, if required to do so under section 83 of the Construction Remedies Act,
Employment Standards Act
109 Subsection 38.1(7) of the Employment Standards Act, chapter E- 7.2 of the Acts of New Brunswick, 1982, is amended by striking out “Mechanics’ Lien Act” and substituting “Construction Remedies Act”.
Land Titles Act
110 The Land Titles Act, chapter L-1.1 of the Acts of New Brunswick, 1981, is amended
aby repealing paragraph 17(4)(e) and substituting the following:
eany lien under the Construction Remedies Act where the time within which the claim for lien is required to be registered has not expired;
bby repealing subsection 55(5) and substituting the following:
55( 5) The requirements of subsections (1) and (2) do not apply to a caveat, claim for lien under the Construction Remedies Act, judgment, order of the Registrar General, document issued by the Crown under an enactment of the Province, document issued pursuant to the Bankruptcy and Insolvency Act (Canada), affidavit under section 37 or such class of instruments as may be prescribed.
cby repealing subsection 60(3) and substituting the following:
60( 3) Notwithstanding subsection (1), an instrument executed by a corporation, except a caveat or a claim for lien under the Construction Remedies Act, shall have the corporate seal affixed thereto, if the corporation has a corporate seal.
Regulation under the Land Titles Act
111 Schedule C of New Brunswick Regulation 83-130 under the Land Titles Act is amended in covenant 111 by striking out “any mechanics’ or other liens” and substituting “any construction lien or other liens”.
New Brunswick Highway Corporation Act
112 The New Brunswick Highway Corporation Act, chapter N-5.11 of the Acts of New Brunswick, 1995, is amended
aby repealing the heading “The Mechanics’ Lien Act does not apply” preceding section 12;
bby repealing section 12.
Public Works Act
113 Paragraph 35(1)(d) of the Public Works Act, chapter 108 of the Revised Statutes, 2016, is amended by striking out “Mechanics’ Lien Act” and substituting “Mechanics’ Lien Act, chapter M-6 of the Revised Statutes, 1973” .
Regulations under the Public Works Act
114( 1) Section 4 of New Brunswick Regulation 2009-48 under the Public Works Act is amended in the portion preceding paragraph (a) by striking out “Mechanics’ Lien Act” and substituting “Mechanics’ Lien Act, chapter M-6 of the Revised Statutes, 1973,”.
114( 2) Section 4 of New Brunswick Regulation 2009-49 under the Public Works Act is amended in the portion preceding paragraph (a) by striking out “Mechanics’ Lien Act” and substituting “Mechanics’ Lien Act, chapter M-6 of the Revised Statutes, 1973,”.
Registry Act
115 The Registry Act, chapter R-6 of the Revised Statutes, 1973, is amended
aby repealing the heading “Filing of mechanics’ lien” preceding section 33 and substituting the following:
Registering lien or certificate under the Construction Remedies Act
bby repealing section 33 and substituting the following:
Registering lien or certificate under the Construction Remedies Act
33( 1) Despite the provisions of this Act, a claim for lien or any certificate under the Construction Remedies Act is to be registered in the manner provided in that Act.
33( 2) A claim for lien or certificate registered under subsection (1) has the same effect as if registered under this Act.
Regulation under the Registry Act
116 Paragraph 3(1)(a) of New Brunswick Regulation 2000-42 under the Registry Act is amended by striking out “filed under the Mechanics’ Lien Act or the” and substituting “registered under the Construction Remedies Act or filed under the”.
Regulation under the Standard Forms of Conveyances Act
117 Schedule C of New Brunswick Regulation 83-133 under the Standard Forms of Conveyances Act is amended
ain Column Two of covenant 111 by striking out “any mechanics’ or other liens” and substituting “any construction lien or other liens”;
bin Column Two of covenant 111.1 by striking out “any mechanics’ or other liens” and substituting “any construction lien or other liens”.
Workers’ Compensation Act
118 The Workers’ Compensation Act, chapter W-13 of the Revised Statutes, 1973, is amended
aby repealing the heading “Enforcement of mechanics’ lien” preceding section 71 and substituting the following:
Enforcement of lien under Construction Remedies Act
bby repealing section 71 and substituting the following:
Enforcement of lien under Construction Remedies Act
71 Where any work or service is performed by an employer in an industry within the scope of this Part, for which the employer would be entitled to a lien under the Construction Remedies Act, it is the duty of the owner, as defined by that Act, to see that the amount of any assessment in respect of such work or service is paid, and if the owner fails to do so, the owner is personally liable to pay it to the Commission, and the Commission has the like powers and is entitled to the like remedies for enforcing payment as it possesses or is entitled to in respect of an assessment.
Conditional amendment
119( 1) If the Bill entitled An Act to Amend the Executive Council Act, introduced in the first session of the 60th Legislature, receives Royal Assent before this Bill, on the commencement of this section, subsection 58(1) of this Act is amended in the definition “Office of the Attorney General” by striking out “Department of Justice and Office of the Attorney General” and substituting “Department of Justice and Public Safety”.
119( 2) If this Bill and the Bill entitled An Act to Amend the Executive Council Act, introduced in the first session of the 60th Legislature, receive Royal Assent on the same date, the Bill entitled An Act to Amend the Executive Council Act is deemed to have received Royal Assent before this Bill.
Repeal of the Mechanics’ Lien Act
120 The Mechanics’ Lien Act, chapter M-6 of the Revised Statutes, 1973, is repealed.
Repeal of New Brunswick Regulation 83-210 under the Mechanics’ Lien Act
121 New Brunswick Regulation 83-210 under the Mechanics’ Lien Act is repealed.
Commencement
122( 1) Subject to subsection (2), this Act or any provision of it comes into force on a day or days to be fixed by proclamation.
122( 2) Paragraph 107(b), subparagraph 107(g)(i) and paragraphs 108(a) and (b) of this Act come into force on Royal Assent.