The following is for information purposes only and does not constitute legal advice of any kind.
Saskatchewan has a new prompt payment law which imposes mandatory timelines for paying contractors and subcontractors in the construction industry. The prompt payment timelines apply to contracts for improvements to land that are entered into on or after March 1, 2022.
This law applies to contractors and subcontractors who provide services or supply materials for an improvement to land. This kind of improvement includes things which are constructed, built, placed, altered, repaired, improved, or added to land. It can also include landscaping, clearing, excavating, digging, drilling, filling, or grading land as well as the demolition or removal of a structure.
There can be a significant benefit for contractors and subcontractors if they follow the prompt payment procedures, because they can be paid sooner and disputes over payments can be dealt with quickly.
Two key forms must be used to fully comply with the new prompt payment law:
- PROPER INVOICE, which the contractor submits to the owner in order to receive payment.
- NOTICE OF NON-PAYMENT, which is submitted by a payor to a payee when there is a dispute with an invoice. There are specific versions of this form for different situations (for example, when an owner disputes the invoice of a contractor, or when a contractor does not provide payment to a subcontractor).
These forms can be downloaded from: https://scdro.ca/adjudicator-directory-forms/
What is a PROPER INVOICE?
Every month, the contractor must submit a written PROPER INVOICE to the owner (unless the contract states otherwise). This invoice includes the amounts to be paid to subcontractors.
The day the contractor submits the PROPER INVOICE to the owner is DAY 1 for the prompt payment timeline.
The prompt payment timeline only begins if the PROPER INVOICE includes ALL of the following information, in writing:
- The contractor’s name and address;
- The date of the invoice;
- The time period during which services or materials were supplied;
- The information identifying the contract or other authority under which the services or materials were provided;
- A description of the services and materials provided (including quantities);
- The amount owing and the terms of payment; and
- The name, title, telephone number, and mailing address of the person to whom payment will be made.
- Any other requirements in the contract or in the legislation.
When do contractors and subcontractors get paid?
Unless there is a dispute about payment,
- Within 28 days of receiving the PROPER INVOICE, the owner must pay the contractor.
- Within 7 days of receiving payment from the owner, the contractor must pay their subcontractor(s).
- Within 7 days of receiving payment from the contractor, the subcontractor must pay their subcontractor(s).
What happens if there is a dispute over the amount to be paid?
If a payor refuses to pay some or all of an invoice, the payor must serve a NOTICE OF NON-PAYMENT on the payee. The NOTICE OF NON-PAYMENT states:
- the amount that is not being paid; and
- the reason for the non-payment.
- Within 14 days of receiving the PROPER INVOICE, the owner may serve a NOTICE OF NON-PAYMENT on the contractor.
- Within 35 days of giving the owner the PROPER INVOICE, the contractor may serve a NOTICE OF NON-PAYMENT on a subcontractor.
- Within 42 days of the owner receiving the PROPER INVOICE, a subcontractor may serve a NOTICE OF NON-PAYMENT on their subcontractor(s).
Any non-disputed payment must still be made within the prompt payment timeline.
Within 7 days of receiving partial payment, a contractor or subcontractor must pay their subcontractor(s) proportionately from the partial payment received, unless the amount not paid was owing to a dispute with a specific contractor, in which case the specific contractor would be paid a proportion of the payment (as applicable) and the other subcontractor(s) would be paid as fully as possible.
What happens if a contractor or subcontractor receives a NOTICE OF NON-PAYMENT?
A contractor or subcontractor must inform their subcontractors(s) immediately that they received a NOTICE OF NON-PAYMENT.
Within 7 days of receiving a NOTICE OF NON-PAYMENT, the contractor or subcontractor must serve a NOTICE OF NON-PAYMENT of their own on their subcontractor(s), stating.
- the subcontractor won’t be paid because no payment was received from the owner or contractor;
- the amount of the non-payment; and
- the contractor or subcontractor who was not paid undertakes to proceed to Adjudication with the payor within 21 days of receiving the NOTICE OF NON-PAYMENT.
NOTE: if the contractor is proceeding to Adjudication with the owner because the owner did not pay, there is no need for the subcontractor to begin Adjudication.
What happens if a contractor or subcontractor is not paid and does not receive a NOTICE OF NON-PAYMENT?
The contractor or subcontractor must serve a NOTICE OF NON-PAYMENT to their subcontractor(s), within the timeframes noted above.
What happens if the prompt payment timelines are not followed?
The payor who misses a deadline to pay or serve a NOTICE OF NON-PAYMENT must pay the FULL amount owing to their payee, within the timeframes for payment noted above.
What is Adjudication?
“Adjudication” is the process for resolving disputes related to payment or other matters raised by the parties. It is a faster alternative to placing a builders’ lien. The Saskatchewan Construction Dispute Resolution Office (SCDRO) is the authority which oversees adjudications. Their website is www.scdro.ca.
The Adjudication process begins when one party serves a written NOTICE OF ADJUDICATION on the other party. For example, a contractor who has not been paid can serve a NOTICE OF ADJUDICATION on an owner.
After the NOTICE OF ADJUDICATION is served, the adjudication process moves quickly:
- Within 13 days, an adjudicator is appointed. (Either the parties can agree on an adjudicator from the above list within 4 days of the NOTICE OF ADJUDICATION being served, or, if they cannot agree, an adjudicator will be appointed within 7 days of a request to the SCDRO.)
- Within 5 days of the appointment of the adjudicator, the party who started the adjudication must provide the adjudicator and the other party a copy of the notice of adjudication, copy of the contract, and any other documents they are relying upon.
- Within 5 days of receiving the documents, the party who is responding may provide the adjudicator and the party who started adjudication with a written response and any documents they are relying upon.
- Within 30 days of first receiving the documents, the adjudicator must make a decision in writing (unless otherwise agreed to by the parties and the adjudicator).
- If the adjudicator’s decision directs one party to make a payment, the payment must be made within 10 days (unless a party applies to the court to set aside the decision), or else the decision can be enforced like a court order.