C O N S T R U C T I O N L AW
Because the PWA is a provincial
statute, claims under the PWA do not
extend to federal public works.
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in a builders’ lien claim should be included in a claim under
the PWA. This includes details such as where the work was
completed, who completed the work, who was the work
completed for, when was the work completed, the scope of
work completed and the total amounts due and owing.
Unlike a builders’ lien, which requires registration at Land
Titles, a claim under the PWA is sent by registered mail. A
claim under the PWA has a similar timeframe as a builders’
lien, with the exception of roads and highways, and must be
submitted within 45 days after the last day labour, materials,
equipment or services were provided. With respect to roads
and highways, the claim must be sent by registered mail no
sooner than 30 days nor later than 90 days after the last
day on which the labour, equipment, material or service
was provided.
After providing notice
Once a claimant has provided the appropriate notice, the
Crown has discretion with respect to the next steps. The
PWA creates procedures to facilitate payments to claimants,
including allowing the Crown to withhold funds payable
to the general contractor if it is satisfied there is sufficient
evidence to justify the claim under the PWA. That said, the
Crown is not required to withhold monies from the general
contractor under the PWA. The Crown is also permitted to
take additional steps, such as paying a subcontractor directly
or having the funds paid directly into Court. Although it was
once the practice for the Crown to make some evaluation of
claims, it is now common that the Crown will simply pay the
claim amount directly into Court for the claimant and other
affected parties to sort out.
If a claimant has a valid claim, they have certain priority
over other creditors in accordance with the provisions of the
PWA (i.e. priority over any other claimant with respect to any
money payable under the contract with the Crown for the
construction, alteration, demolition, repair or maintenance
of that public work).
Key points
Potential claimants under the PWA should keep the following
in mind:
• Know the project being working on. Is it Crown land?
Is the work on behalf of the Crown on private land?
Is the project contracted by a Minister or agent of the
Crown?
• Be diligent with timelines. Claimants have 45 days
from the last day labour, materials and services were
provided, unless it is a road and then the claim must be
submitted between 30 and 90 days after that last day.
• Be detailed. The claim should include all the particulars
necessary to support the request for payment.
Generally, providing notice of a claim under the PWA can be
a useful tool to obtain payment directly from the Crown and
should be kept top of mind when assessing payment risk or
dealing with a situation of non-payment on a public works.
It is important to note that a notice of claim under the PWA
does not preclude a firm from also registering a builders’ lien
(if appropriate) or taking other steps to protect interests. n
ANYTIME, ANYWHERE
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