Prompt payment | S2 EP11

Across Canada, steps are being taken to tackle payment delays and disputes in the construction industry. Ontario’s law changed in 2019; Alberta’s law is changing on August 29 of this year. This episode looks at how Ontario’s prompt payment and adjudication regime is working in practice, and what similar changes mean for Alberta, with Kelly Moffet-Burima and Ted Brook. Kelly is a partner in our Calgary office whose practice includes a focus on construction litigation, while Ted is a senior associate in our Toronto office who practises commercial litigation with a focus on complex matters, including construction disputes.

Additional resources: PPCLA Advisor calculator for Alberta’s new Prompt Payment and Construction Lien Act.

CPD credits: This episode qualifies for 0.6 hours of Substantive credit in Ontario and 0.6 hours of Substantive credit in British Columbia.

Transcript

Listen and subscribe to the Disputed podcast on:

• Apple Podcasts
• Spotify
• Google Podcasts

Transcript:

Andrew McCoomb  00:10
Welcome to Disputed, a Norton Rose Fulbright podcast.  And if you have a connection to the construction industry, this episode is for you. Whether you're an owner, contractor, subcontractor, or otherwise connected to a construction project, you will likely have faced payment delays or payment disputes at some point. For subcontractors especially, delayed payment compounded by supply chain disruptions and economic effects of the past few years has caused serious financial difficulties. Resolving payment disputes through the court system may often look like an unsatisfactory and additionally time consuming solution. But the laws across Canada are changing. Provincial governments are trying to alleviate these effects down the construction pyramid by introducing statutory deadlines for issuing and paying invoices, and to fast track adjudication system for resolving disputes. This episode focuses on those changes, in particular in Ontario and Alberta. Ontario's new regime came into force in October 2019. And Alberta's changes, which are partly modeled on Ontario's, are happening on August 29^th, 2022 with the introduction of the Prompt Payment and Construction Lien Act. We are asking two of our construction lawyers in these provinces to break down the new legislation, give us some insight to how those changes are working in Ontario, what we might expect to play out in Alberta, and consider what strategies parties can use to navigate the new laws. Kelly Moffet-Burima is a partner in our Calgary office and her practice focuses on construction disputes, complex commercial litigation, and professional liability matters, with a focus on energy and lien claims. Ted Brook is a Senior Associate in our Toronto office. He practices complex commercial litigation with a focus on construction disputes, class actions and environmental claims. Kelly and Ted work with parties at all levels of the construction pyramid from owners to consultants, general contractors and trades.

Ailsa Bloomer  02:03
Also just a quick note before we get started, for those in Alberta, Norton Rose Fulbright is developing a new app to help you calculate your payment adjudication and lien registration deadlines under the new Alberta statute. A link to where you can download this app will be made available in this episode's description.

Ailsa Bloomer  02:28
Ted, Kelly, welcome to the podcast. Thank you very much for joining us. 

Kelly Moffet-Burima 02:30
Happy to be here.

Ted Brook  02:32
Thanks for having us.

Ailsa Bloomer  02:35
Okay, so let's start by setting the scene. What are the issues that the construction industry has faced in the past decade and what have provincial governments done to try and deal with this?

Kelly Moffet-Burima  02:46
The Prompt Payment and Construction Lien Act that's coming into Alberta is part of a nationwide effort that Canada has engaged in to alleviate perceived delays in payment and speed up construction disputes down the construction pyramid more generally. And looking to Alberta more specifically, this is the first attempt that the legislature has had to modernize The Builder’s Lien Act in about 20 years. And the reasons for that modernization were numerous. The time for payment in Alberta construction has increased over 70 days. Disputes have been taking a very long time to run through the courts and they cost quite a bit of money because all lien claims are required to go through the Alberta Court of Queen's Bench. And it was difficult for parties to advocate for themselves because of subcontractors and contractors wanting to maintain good relationships throughout their business.

Ted Brook  03:46
And I'll just add that, you know, Canada for a while was lagging behind our peers internationally. So countries like the United Kingdom, the United States, Australia and New Zealand, they've all had some mechanisms in place to address payment delay issues in the construction industry for quite some time. And so what we've been seeing over the past few years is Canada's construction industry, and legislators stepping up to introduce some changes.

Andrew McCoomb  04:18
Ted, you're based in Toronto, where does Ontario sit on the process of trying to tackle this issue?

Ted Brook  04:27
So Ontario was one of the first provinces in Canada to introduce a number of modernization amendments to our Construction Act. And so that included a set of amendments in July of 2018, followed by some really important amendments, two really important amendments, in October of 2019. And so, those two amendments, which we'll talk about today, include the introduction of a prompt payment regime and the introduction of a quick adjudication process for disputes related to prompt payment and other matters. Prompt payment is just a fancy way of saying that there are now legal deadlines for paying or disputing invoices in the construction sector. And that prompt payment regime applies to all parties in the construction pyramid. And it applies to all sizes and types of projects from small residential improvements to massive 3P projects. The bottom line, is that owners have 28 days to pay a contractor after the receipt of a proper invoice. And then contractors have seven days to pay their subcontractors after receiving payment from an owner. And again, that prompt payment is mandatory for all contracts, the parties do have some flexibility to establish milestones or payment schedules, but-- but ultimately, once a proper invoice is received, that 28 day clock starts running. And that was the big-- the big change that was introduced in 2019.

Ailsa Bloomer  06:09
And so how does that compare to the time period that parties normally had for paying invoices? I know Kelly mentioned it was up to 70 days in Alberta – was it similar in Ontario?

Ted Brook  06:21
There was no legislated deadline for the payment of invoices in the construction sector. And so really it came down to a matter of contract and agreements reached between private parties. What-- what the prompt payment regime does is it imposes a deadline onto parties in the construction period-- pyramid regardless of what their contracts might say. And regardless of what their normal practices may have been for paying an invoice whether it was 60 days or 90 days. If a proper invoice is received by an owner, then that 28 day clock starts running.

Kelly Moffet-Burima  06:58
Yeah, interestingly, in the original Bill that was put forward in the Alberta legislature, our legislature tried to differ a little bit from Ontario's prompt payment timelines at the outset by requiring simply that all payments up and down the pyramid would be required to be made within 28 days, it actually would have been just 28 days, period. So owners would have had to pay well in advance of that 28 day period. And that was met with-- with quite a bit of pushback from various stakeholders saying that making that finite 28 day period would make it essentially impossible for all subcontractors down the chain to be paid in a timely manner. And so that resulted in a rather significant amendments to Bill-37, which is what we see in the ultimate legislation today, that matches exactly what Ted has described as the-- as the deadlines in Ontario.

Andrew McCoomb  07:55
But tell us a bit about scope. So who's caught, what kinds of projects or agreements would be caught by the Alberta legislation?

Kelly Moffet-Burima  08:04
So the legislation applies to any contract or handshake agreement that provides materials or work for what's defined in the legislation as an improvement in the land in Alberta. So that includes everyone up and down the construction pyramid - developers, contractors, subcontractors, and interestingly, the new Act also includes consultants such as registered architects and engineers, which is quite a significant change from The Builders Lien Act. The only-- the only contracts that it does not apply to are public works as defined in the Public Works Act. And that is similar to the prior legislation. So if you are contracting with the provincial Crown, this Act doesn't apply to you. Otherwise, you need to pay attention. It's if the improvement occurs in Alberta, so if it involves Alberta soil, that's-- this is the Act that will apply.

Andrew McCoomb  09:01
We've touched, obviously, on the prompt payment concept that’s sort of foundational of this and the timing of it. Tell us about the fast-track adjudication program in Alberta.

Kelly Moffet-Burima  09:10
So the fast-track adjudication programs also modified or modelled on the Ontario regime. So basically, if the payment from the owner doesn't come down the pipe within 28 days, or if there's a notice of dispute of payments, anywhere up and down the construction chain, the person who's not getting paid or the person who disputes the amount of the payment is entitled to forward the matter to the adjudication process. And what happens in that case is a nominating authority that's designated by the legislation, trains various adjudicators, who are then appointed to adjudicate the dispute. It's anticipated to happen in a very streamlined process such that you get a resolution to your dispute within two months. 

Ailsa Bloomer  10:03
I think we want to dive a bit deeper into the adjudication because that's really the substance of what we're going to be talking about. It's one of the two most significant changes. Ted, coming back to Ontario, can you tell us a bit about the adjudication regime in your province?

Ted Brook  10:18
Yeah, of course. So we've said that there's this 28 day clock that starts running upon the receipt of a proper invoice. But an owner may not want to pay that invoice, right? And so there's actually another clock that starts running too. Within 14 days of receiving a proper invoice, if an owner doesn't want to pay it, they must provide what's called a Notice of Non-Payment to the contractor. And that notice needs to set out the reasons why they're not going to pay the invoice. If that-- if the notice isn't sent, if it's not delivered on time, then, the owner is legally obligated to pay the invoice and they have to do it within 28 days. But if they decide to dispute, then that can trigger an adjudication process. And this is fast, it's much faster than the typical time period where we would be seeing the invoices of contractors and subcontract-- subcontractors getting paid prior to the prompt payment and adjudication regimes. So, the adjudication process covers a range of different disputes related to payment, in the construction sector. It could be a dispute over the value of the services that were actually provided, it could be a dispute about a change order in relation to an invoice. It could be simply a dispute regarding the reasons given in a Notice of Non-Payment by an owner. And this adjudication process is fast. It happens out of court, and it's done by specialists with industry experience: they might be engineers, they might be construction lawyers, they might be project managers. But all the adjudicators have been appointed in Ontario by an organization known as ODACC, O-D-A-C-C, who has approved of these individuals and provided them with training to handle the adjudications very quickly. So an adjudicator must release a decision in a dispute within 30 days of receiving the required documents for the adjudication. And that determination by the adjudicator is binding on the parties subject to a court or an arbitrator, at some later point in time, resolving the issue on the merits.

Andrew McCoomb  12:50
Something implicit though, in what you're saying, Ted, you refer to interim invoices and payments, and you talk about things being resolved on their merits in court or through an arbitration later. Are these adjudications really just over the preliminary question of whether money should flow to a contractor or subcontractor pending a further resolution of a case? Or-- or is this final in and of itself subject to something like a judicial review or an appeal?

Ted Brook  13:21
Yes, that's-- that's a fantastic question. And it's an important one. So the philosophy behind Ontario's prompt payment and quick adjudication process is pay now, argue later. And so the process wants to wants to steer parties towards paying those invoices without prejudice to the rights, perhaps to bring a lien claim at some later point, have an arbitrator, you know, in accordance with the contract between the parties resolve that dispute. But in the interim, the project is going to move forward and the flow of funds is going to continue down the construction pyramid. And it's fast. So you know, an owner has 10 days to pay an invoice following the determination of an adjudicator, so that-- that payment needs to happen right away, but it's without prejudice to them going to court after the project to try and recover that if they disagree with the adjudicator’s findings. But in the interim, that order is binding, and it can be enforced by the contractor or subcontractor with the power of a court order. What we've seen from other jurisdictions is that typically, parties are not challenging or attempting to re-litigate the decisions of adjudicators that are made during the course of the project. So, that's important to emphasize just because the adjudicator’s decision is without prejudice to, or can be revisited at some point in the future, doesn't mean that parties are actually doing it. Typically what we see in other jurisdictions is that they either don't revisit the issue, or if they try they're not successful because the adjudicators are dealing with these issues they're experienced in the construction industry and they're dealing with them in real-time based on evidence that's-- that's fresh, and with-- with the available documents that a court would have in any event.

Andrew McCoomb  15:29
And as a function just of litigation economics, it's interesting because with the timelines that are imposed by the prime payment regime, you're breaking what could be a much larger dispute up into bite sized pieces that are harder to litigate or re-litigate on their own. And it really changes the litigation dynamics, because you could see a subcontractor building up a whole list of complaints of underpayment or problems with billings, and having an aggregate basis, a better justification for litigation, that same thing for a contractor and withholding payment from subs, if there's a lot of deficiencies to complain about. It makes the economic game of litigation a lot easier to play. But you're breaking things up into these tiny pieces and saying you've got to fight over each one in this tiny period of time, it's actually it's quite a bit more difficult to sort of raise them separately as if they need to be dealt with on their own. It's an interesting, intentional, or otherwise byproduct of how it seems like this could work.

Ted Brook  16:27
Yeah, I think you're right. Absolutely. The bite-sized piece part is important and that's what makes I think the-- the process possible.

Kelly Moffet-Burima  16:34
One of the things that-- that we've been looking at in Alberta with some interest, is how the adjudication process has really played out in Ontario as the most comparable jurisdiction to what's coming down the pipe for us. And it looks as though even though you can break these interim issues with respect to payments into these bite-sized pieces, and put them through the adjudication process, it appears that parties aren't doing that. They're-- they're choosing either-- either to just run projects more smoothly, which I think we all know, is probably not the case, because there's been no massive shift in construction industry practice that I'm aware of in Ontario. And so I think that many parties are likely choosing the court route, regardless of the fact that this adjudication process is available to them.

Ted Brook  17:37
In some ways, it's unfortunate that the take up of the adjudication process has been still quite slow. And just to put some, some numbers on that, according to ODACC, in their 2021 year-end report, there were 50 adjudications started in Ontario in 2021. And-- and there were I think, almost 100,000 new housing starts in 2021. Right, so that's just residential construction sector, 100,000 brand-new projects. They were 50 adjudications started in 2021. That's up from-- from 32 adjudications that were commenced in 2020. But not much, and it's still minuscule compared to the size of the construction industry in this province. 

Ailsa Bloomer  18:27
Yeah, I thought the adjudication process was mandatory, but is that only mandatory if a party issues a Notice of Adjudication?

Ted Brook  18:34
Yes, exactly. And that's something to keep in mind, right. There is no enforcement body for The Construction Act in Ontario. There is no Ministry of Construction that will prosecute parties that don't play by the rules. What the Act does is it provides tools to everyone in the construction pyramid. And in the-- in this case, these prompt payment and adjudication provisions provide in particular subcontractors, trades and contractors with tools. But if people don't use the tools, then we're not going to see the results.

Ailsa Bloomer  19:17
And Kelly, do you expect it's similar in Alberta or it will be similar in Alberta?

Kelly Moffet-Burima  19:22
Yeah, that-- there seems to be quite a bit of uncertainty as to whether our industry is going to respond to the adjudication process in a favourable way. And I think that, for-- for better or for worse, we're more likely to resemble Ontario, keeping in mind that for Ontario, even this is early days in the legislation and the transitional provisions in Ontario are different than what we're going to have in Alberta, such that the implementation on grandfathered-in contracts in Ontario is a larger percentage of what-- of what is happening right now. And so it may be that-- that adjudications are on the upswing in Ontario, we're not sure yet. But in Alberta, the way that the adjudication process unfolds is similar. It's mandatory, but only if the parties decide to use it. And even when an adjudication occurs, the determination of that adjudication is binding on the parties, unless a court order is made, or the parties apply for judicial review, or the parties enter into a written agreement to appoint an arbitrator after the termination, or if the parties resolve the matter by written agreement after the determination. So it's determinative if the parties want it to be determinative. And that's something that all parties who are going to be subject to this latest legislation need to consider when they're drafting their agreements for new builds. If you want this process to be determinative, you should put those words in your contract. That's just an argument you could bring to the court based on the wording of the legislation.

Andrew McCoomb  21:09
And I have to say, the logic of it is curious to me. The logic of thinking that to solve the problem of the inequity and bargaining for subcontractors who may not want to be the squeaky wheel advocating to get degrees, that you create a regime that makes it easier for them to be a squeaky wheel, when that's not what they want to be. I mean, ultimately, it seems like a Prisoner's Dilemma problem, where if everybody adopted the attitude that this is a good regime for us to make sure we get paid quickly, then contractors wouldn't have an incentive to try to bargain as between different available options, you either would or wouldn't have recourse to the regime. But until you get to a point where everyone says, “yeah, this is good for us, let's opt in”, it does seem like you've got, you know, the economic term would be ‘perverse incentives’ for-- for other contractors to go against what may not be in their interest, avoid the regime, be a little bit more easy-going and collect the business as opposed to other people who want to advocate for themselves. It's tricky to see how the logic of this plays out in practice, as well-- as well-intentioned as it may be.

Kelly Moffet-Burima  22:20
Yeah, and it's certainly, we're hoping for the best and trying to advise our clients that this is in their interest to-- to participate in. Particularly from the owner side, you-- you mentioned contractors and subcontractors, and that sort of Prisoner's Dilemma, and I agree with you. On the owner’s side, the issue they have is they could say, okay, we're not going to deal with this at all. But if they get hit with a notice of non-payments, and then a mandatory adjudication, and the subcontractor wins that fight, then they've got to, you know, they've got to spend the money to go to court, they've got to try and get a judicial review. And we have a jurisprudence out of Ontario saying that, if you're not complying with the Act, and you try and go through the judicial review process, we're going to dismiss your case out of hand. And so it's a real risk analysis that every industry participant needs to go into, keeping in mind that, you need to play nice in the sandbox with your-- with your business partners on projects, and you can't contract out of this Act.

Ailsa Bloomer  23:28
One of the noticeable things about the Act is the kind of lack of penalties for non-compliance. What are your thoughts on the consequences of non-compliance with the payment deadlines and the adjudication process?

Ted Brook  23:43
As far as consequences go for failing to comply, with the prompt payment requirements or with an adjudicator’s order, there-- there are two, I think that we could add to the conversation because they're important, right? So one is that there are mandatory interest clauses that are in the Act in Ontario. And if a prompt payment deadline is missed, the invoice is going to automatically start accruing interest, regardless of what the contract says. So that's new, and that's a little bit of an incentive for-- for parties to comply with their prompt payment deadlines. The second, I think, really important consequence, is something that Kelly just referred to, that's the Ontario divisional court's decision in SOTA Dental, which came out this spring. And in that case, a three judge panel of the Divisional Court rejected an owner's application for judicial review from an adjudicator’s order. Because, not to do with anything on the merits of the case, it was simply rejected because the owner had neither paid the adjudicator’s order that was under review, nor moved for a stay of the decision. And-- and what the message was, was pretty clear. It's that if you try and bring an application for judicial review, while not paying an adjudicator’s order, it’s just going to get dismissed out of hand by the Divisional Court. So, I mean, I think that that is a significant consequence. And certainly a message that was being sent by the Divisional Court to the industry that the adjudication process needs to be respected. And that when it is used, the courts are not going to permit parties to delay payment by commencing court actions.

Ailsa Bloomer  25:45
Yes. If you want the benefit of the game, you have to play by the rules of it, right?

Ted Brook  25:50
Yeah. But it just keeps coming back to that that Prisoner's Dilemma that Andrew has-- has identified. Why aren't more parties playing by the rules of the game, even when those rules would benefit them? I've spoken to clients about this. I've spoken to other lawyers who practice in the sector, and people have different theories. Obviously, the construction industry is a relationship-based sector, a contractor's relationship with their sub-trades is really important. You know, large firms are trying to win business and repeat business from owners. Owners, you know, want to keep their best contractors happy, and so they may be paying them under deadlines that are faster than the prompt payment requirements already. So you know, there's a relationship dynamic to the industry, that these legislative regimes may not be mapping on to perfectly.

Kelly Moffet-Burima  26:51
I think that that's just exactly the type of thinking that's going to go on in industry in Alberta, when this comes in. We're not a huge province, it's not a huge industry, you want repeat business. And so even though you can be the squeaky wheel under this legislation, and maybe get what you want out of one project, I think there's going to be quite a bit of consideration from all industry participants as to whether the benefits on that one project will outweigh the-- the continuing relationships that they may jeopardize through putting this into putting any dispute into adjudication.

Ted Brook  27:30
Yep. So I've got two more thoughts. The first thought-- comment is that speaking to smaller contractors, they find the adjudication process confusing. It feels like a layer of bureaucracy, and even just having to serve a Notice of Adjudication by a specific deadline is-- is overwhelming when they're trying to manage a number of different variables on a number of different projects happening at the same time. So it's just that one more back office thing, that owners don't have time to deal with. And so I think that's part of the reason why it's not-- or why the take up has been slow.

Kelly Moffet-Burima  28:16
And I think that, to just build on Ted's point there, something that is also onerous for smaller subcontractors is that, as Ted mentioned earlier, the adjudication process is without prejudice to a subcontractors lien right. And in fact, even though the adjudication process is fast, and can be resolved within two months, that's the period in which your-- your lien claim expires, under the new legislation in Alberta, your lien claim will be 60 days. And so if you're unhappy with the adjudications results, and you want to try and bring a court action after that, if you haven't filed your lien, you're left with just a debt action. And so small subcontractors may be making the cost benefit analysis of, do I really want to just file a lien like I've always done? And, you know, register my secured interest against title, or do I want to try this new adjudication process? Or should I be doing both? And so it's confusing for-- for smaller players, for sure, and larger players, to be perfectly honest.

Ted Brook  29:25
Contracts that were entered into before October 2018, are subject to the old provisions of The Ontario Construction Act, right? A lot of big infrastructure started before October 2018, and any procurement process that was initiated before October 2018, even if the contract was entered into after, still subject to the old Act. So, silver lining, it’s possible that one of the reasons why we're not seeing a big uptake is because some major infrastructure projects that will be subject to the prompt payment regime in the future are still operating under the old rules. And there's actually more, more-- more to it than that. So, I was speaking to someone in the industry and they were mentioning how what they have recently been seeing is major owners, like the big infrastructure players, are starting to incorporate language that mirrors the prompt payment deadlines into their prime contracts. So, even though arguably that's implied by way of the Act, they're starting to see it in requests for proposals, and bidding documents, the language of the Act. And I think that-- that's part of the kind of culture shift that we need to see in the sector, is contractors, owners, especially at the top of the construction pyramid, adopting prompt payment deadlines as their own, not just something that's in a statute or the regulations.

Kelly Moffet-Burima  30:54
And it'll be interesting to see if the uptake in Alberta is different, because the transitional provisions are different. Every new contract executed after August 29^th, 2022, in Alberta will be subject to this new Act. And so the delay in applicability of the new legislation, will be less so in Alberta, and so we may see uptake more quickly.

Andrew McCoomb  31:21
So you've hinted at this already, Kelly, but take us through what conversations you're having with clients, whether they're on the builder side, or the contractor side, about how to get ready, how to think about what life's going to be like when these provisions come into force.

Kelly Moffet-Burima  31:39
We're having several discussions with clients with respect to how to get ready in terms of new contracts and how to modify your existing contracts to make sure they're in compliance with the Act. So our first tip always is review your contracts and your subcontracts. If you have drafts or standard term contracts that will be entered into after August 29^th, which is the date this legislation comes into-- into force, ensure that they include terms addressing proper invoicing, there is a template form of the proper invoice in the regulations. We have been advising clients just to simply append that template to their contract, so expectations are aligned between the parties. Make sure you're up to speed on the notice requirements, make sure you understand how change orders will be impacted by those notice requirements. And make sure you take appropriate-- you know the appropriate steps to take if a notice of dispute or adjudication is issued.

Ted Brook  32:43
What I would recommend any business in the sector do, is come up with a plan. If you're-- if you're on the owner side, you need a plan to triage proper invoices and identify with your consultants, project managers, finance team, lenders, very quickly within 14 days whether you're going to dispute an invoice. So instead of being caught off guard, make sure that you have a triage plan in place. And then on the contract or subcontractor side, I think it's important to have a plan for serving a Notice of Adjudication quickly. Work with your project manager team and legal team to come up with a template Notice of Adjudication that you're populating with reasons that are relevant to the specific invoice for the project. So it's ready to go. And you're not the one who's caught flat-footed, and you're taking advantage of the deadlines that-- that work in your favour.

Kelly Moffet-Burima  33:50
Another thing that I'll add that's really specific to the Alberta context is, in the energy sector, we have many companies that work primarily through Master Services Agreements that last for years, with their contractors. And an issue has arisen that I've discussed with lots of clients about whether an MSA that is entered into before the effective date of this legislation is grandfathered in to the transitional provisions, meaning that it doesn't need to comply with the new Act until 2024. And the answer to that is, the Act doesn't give you a certain answer on that. But you can't assume that purchase orders or service orders that you are executing with your service providers under a pre-August 29^th Master Service Agreement will not be subject to the new Act. That is very much contextually dependent on what the language is in your Master Service Agreement. And so, an overview of your Master Service Agreement needs to be conducted before August 29th, so you can ensure you're in compliance.

Ailsa Bloomer  35:00
One of the parts of the legislation, certainly in Alberta, is that there is a risk of a contractor being caught in the middle. And by that I mean, say you're a contractor and you have not been paid by the owner, but the subcontractor has issued their invoice to you, you could be in a position where you have to pay the subcontractor in full even though you have not been paid by the owner yet. So what would you do in that situation?

Ted Brook  35:26
The rules require the contractor to pay their subcontractor within 35 days, or commence an adjudication against the owner. So either way, the payment deadlines are going to be enforced, and there's potential for contractors to be stuck in the middle. If they receive a proper invoice from a subcontractor and they've given a proper invoice to an owner that hasn't been paid, in that scenario, you either need to pay the subcontract and eat the cost, which no contractor is going to want to do, or you need to commence adjudication against the owner.

Andrew McCoomb  36:04
Kelly, Ted, thank you very much for your time, and it's really valuable insights, this is great.

Ailsa Bloomer  39:06
We hope you enjoyed this episode of Disputed. If you'd like to find out more about this topic, or how to contact our guests, please visit nortonrosefulbright.com/disputed. Also, if you have any questions, feedback, or topics that you'd like us to cover in a future episode, please do email us at disputed@nortonrosefulbright.com. And if you would like to hear more, please subscribe to Disputed on Apple Podcasts, Spotify or wherever you get your podcasts. 

Norton Rose Fulbright Canada LLP is providing this podcast as a purely educational service. While it may contain legal information, it should not be construed as legal advice, a legal opinion or recommendation, or a statement of process or policy of Norton Rose Fulbright Canada LLP. The information, views and opinions expressed by guest speakers are entirely their own and their appearance on the podcast does not express or imply an endorsement by Norton Rose Fulbright Canada LLP of the information, views or opinions expressed by any guests, or of any entities they represent. Norton Rose Fulbright Canada LLP expressly disclaims any and all liability or responsibility for any direct, indirect, incidental or any other form of damages arising out of any individual’s or organization’s use of, reference to, reliance on, or inability to use this podcast or the information presented in this podcast.