In the construction industry, timely payment for work completed is critical for maintaining cash flow and ensuring the smooth progression of projects. To address issues of delayed payments, Ontario’s Construction Act includes provisions for prompt payment and adjudication. These provisions are designed to create a more efficient payment process and provide a quick resolution mechanism for payment disputes. This article will provide an overview of these provisions and offer guidance on how to navigate them effectively.

Prompt Payment Provisions

The prompt payment provisions of Ontario’s Construction Act aim to ensure that contractors, subcontractors, and suppliers receive timely payments for their services and materials. Key aspects of these provisions include:

1. Payment Timelines

  • Owner to Contractor: Owners must pay contractors within 28 days of receiving a proper invoice.
  • Contractor to Subcontractor: Contractors must pay subcontractors within 7 days of receiving payment from the owner.
  • Subcontractor to Sub-Subcontractor: Subcontractors must pay their sub-subcontractors within 7 days of receiving payment from the contractor.

2. Proper Invoices

A proper invoice is a prerequisite for triggering the payment timeline. A proper invoice must include:

  • The contractor’s name and address
  • The date of the invoice and the period during which services or materials were supplied
  • A description of the services or materials supplied
  • The amount payable and the payment terms
  • The name, title, and contact information of the person to whom payment is to be sent

3. Disputes and Notices of Non-Payment

If an owner disputes an invoice, they must issue a notice of non-payment within 14 days of receiving the proper invoice. Similarly, contractors and subcontractors must issue a notice of non-payment to their subcontractors within 7 days of receiving their own notice of non-payment.

Adjudication Provisions

The adjudication provisions provide a rapid dispute resolution process for payment issues, allowing parties to resolve disputes without lengthy litigation. Key aspects of adjudication include:

1. Initiating Adjudication

Either party to a construction contract can initiate adjudication for disputes related to:

  • The valuation of services or materials provided
  • Payment under the contract, including change orders
  • Disputes over notices of non-payment
  • Any other matters that the parties agree to adjudicate

2. Selecting an Adjudicator

The party initiating adjudication must select a qualified adjudicator from an authorized nominating authority. The adjudicator must be agreed upon by both parties or appointed by the nominating authority if the parties cannot agree.

3. Adjudication Process

The adjudication process is designed to be fast and efficient:

  • Notice of Adjudication: The initiating party serves a notice of adjudication to the other party, outlining the dispute and the relief sought.
  • Appointment of Adjudicator: An adjudicator is appointed within 4 days of the notice of adjudication.
  • Submission of Documents: The initiating party submits their supporting documents within 5 days of the adjudicator’s appointment.
  • Response: The responding party has an opportunity to submit their documents and response.
  • Adjudicator’s Decision: The adjudicator must render a decision within 30 days of receiving the initiating party’s documents, unless the timeline is extended by agreement.

4. Binding Nature and Enforcement

The adjudicator’s decision is binding on an interim basis and must be complied with immediately. While the decision can be appealed or challenged in court, it remains in effect until overturned or altered by a subsequent legal proceeding.

Conclusion

The prompt payment and adjudication provisions of Ontario’s Construction Act are crucial for ensuring timely payments and providing a quick resolution mechanism for payment disputes. Understanding these provisions and how to navigate them can help contractors, subcontractors, and suppliers maintain cash flow and minimize disruptions in their projects.

At Cowan & Carter Law Firm, we specialize in construction law and are here to help you understand and leverage the prompt payment and adjudication provisions of Ontario’s Construction Act. Contact us today for a consultation and let our experienced team assist you in effectively managing your construction contracts and resolving payment disputes.

DISCLAIMER: Please note this article is not legal advice. Always consult a lawyer for legal advice regarding your particular situation. The article is not necessarily a complete and accurate picture of the law – it is an article of a general nature.

Published on May 13, 2024