Builders’ Liens and OH&S: NOT TO BE FORGOTTEN Presented by: Collin K. Hirschfeld to Saskatchewan P3 Summit 2014 Date: September 9, 2014

AGENDA Overview of Builders’ Liens Trust Provisions Lien Provisions Holdback Provisions Practical Considerations OH&S Prime Contractor Required Worksite Prime Contractor Obligations

BUILDERS’ LIENS

PRELIMINARY THOUGHTS Pay attention to the definitions and concepts under the Act, like: Contract Subcontract Substantial performance (section 3) Completion (section 4) (NEW) ALL APPLY TO A P3 SITUATION

TRUST PROVISIONS Three types Owner, Contractor, Subcontractor If have non-monetary consideration, the value can be part of the trust

TRUST PROVISIONS (CONT’D) Directors and others in control can be liable for breach of trust Have to assent or acquiesce in conduct knew or ought to have known was breach Two years from completion to sue

LIEN PROVISIONS Arises as soon as work or materials are provided to a project Provided doesn’t necessarily mean actually on site Is a lien on the real property and the materials for as much as remains unpaid

LIEN PROVISIONS (CONT’D) Can have a general lien on more than one parcel If you can’t identify which piece of land was improved Cannot register against Crown land but serve Crown

LIEN PROVISIONS (CONT’D) Lien is a charge against Holdback Any additional amounts owing Needs to be registered within 40 days of: Substantial completion Abandonment Completion

LIEN PROVISIONS (CONT’D) Two ways to claim lien Claim of Lien Attaches to land and holdback Can discharge in whole or in part BUT cannot be revived

LIEN PROVISIONS (CONT’D) Written Notice of Lien Binds other 90% Effective in stopping project Cuts both ways though Can still pay other funds if holdback lien amount Can withdraw and reserve

HOLDBACK PROVISIONS Each payer in the pyramid has to maintain Applies regardless of payment terms under the contract Mortgagee may maintain

HOLDBACK PROVISIONS (CONT’D) Is inviolable Can’t be used to complete project But not forever – 40 day period Can be sued if fail to release

HOLDBACK PROVISIONS (CONT’D) Owner has to maintain a holdback trust account Crown does not have to maintain a holdback trust account

PRACTICAL CONSIDERATIONS Liens can be lapsed under Land Titles Act Section 47 direct payment Section 56 application (no notice) Section 57 application (holdback)

PRACTICAL CONSIDERATIONS Can request information from owner or mortgagee Can be questioned on lien claim Cannot contract out of Act Can argue substantially complied with form

PRACTICAL CONSIDERATIONS Pay attention to if there is a certificate of substantial completion Can request certification of completion of subcontract or contract Important because it can affect when holdback is released

PRACTICAL CONSIDERATIONS Is allowance for liens filed outside 40 days But affects what you attach Owner could payout funds and you are left with nothing

PRACTICAL CONSIDERATIONS Are two holdback funds Pre-substantial completion Post-substantial completion

PRACTICAL CONSIDERATIONS Holdback on large contracts Has to be over 1 year to complete Value has to be over $25M Allows for yearly release of holdback

OH &S

PRIME CONTRACTOR Effective January 1, 2015 Applies to construction, forestry, and oil and gas industries Applies to a required worksite

REQUIRED WORKSITE Has 10 or more self-employed persons or workers under the direction of two or more employers

WHO IS THE PRIME CONTRACTOR Party who enters agreement with owner to be the prime contractor OR If no agreement, owner of the worksite is the prime contractor

OBLIGATIONS OF PRIME CONTRACTOR Gather all policies, procedures and safe work practices of all employers and self-employed parties on site Coordinate activities at the work site affect health and safety

OBLIGATIONS OF PRIME CONTRACTOR (CONT’D) Ensure all parties on site have adequate and appropriate policies etc. re safety and ensure compliance with them Prepare written plan prior to work that outlines above and lists supervisors of parties on site

OBLIGATIONS OF PRIME CONTRACTOR (CONT’D) Identify hazards and inform Ensure parties on site eliminate hazards identified before work starts OR identified after work starts.

Thank You!