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Scissor lifts and wooden ladders – Legal Desk, December 2023

January 2, 2024 | By Dan Leduc

January 2, 2024 – The construction sector is among the slowest-paid industries which, over the last 30 years, has fostered the mindset that it is somehow shameful to ask for an overdue payment.

Prompt payment regimes that have been introduced as law mandate specific dates for payment. When those dates are breached, recourse is to be initiated by you—the party who has not been paid in a timely manner (or at all).

The recourse of adjudication was designed for you, specifically to allow for an inexpensive and quick resolution of non- or slow payment issues between debtors and creditors.

Moreover, in Ontario, the notion of a Notice for Non-Payment—which comes 14 days after the transmittal of a Proper Invoice—also allows for further enforcement of timely payments. Again, this recourse must be initiated by you, the entity who is owed.

(In my opinion, failure to provide that 14-day Notice of Non-Payment or Notice of Partial Payment suggests that the full amount of the earlier-transmitted Proper Invoice becomes due, payable and owing 28 days from transmittal.)

Hopefully you see a trend in this column: namely, if you want recourse from slow or non-payment, you must initiate that recourse. You won’t get paid any quicker waiting for someone else to do it.

It is almost exclusively incumbent on you to pursue the monies you are owed; to make demand for payment; and, if that fails, to seek recourse under amendments to legislation in most provinces, and those coming soon for federal undertakings.

As I’ve said time and again at numerous contractor engagements: you have been given a veritable scissor lift of rights and privileges under prompt payment and adjudication regimes, but you’re still climbing a wooden ladder!

You need to change the prevailing mindset from begrudgingly waiting for payment to actively claiming what you are owed.

Dan Leduc is a partner at Soloway Wright LLP, and specializes in construction law. He is always happy to take on new clients from anywhere in Canada, and can be reached at dleduc@solowaywright.com.

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