By Scott Fairley, Partner

During the summer months construction projects are in full swing.  As
the construction season progresses and projects near completion, the time comes
when contractors and subcontractors start to review their accounts and start to
ask questions such as: When can I expect to receive my final draw?  Am I going
to get paid?  Do I need to register a construction lien?  While the hope is that
full payment is made on all projects, it is worthwhile to take some time to be
prepared to protect your interests as project move towards completion, in case
funds don’t flow.  The following is an outline of various items to consider in
determining if you are prepared for the possibility that you may have to take
steps to get paid, with particular reference to Construction Lien
Act issues:

• Has a certificate of substantial performance been
  published for the contract under which you are working.  If so, it can affect
  the deadline for registering a claim for lien.  The time to register a claim for
  lien runs from the last supply / completion date or the date of publication of a
  certificate of substantial performance, whichever is earlier.  It is up to you
  to keep track of whether certificates are published on your projects.  Refer to
  the following website to review published certificates:  http://www.dcnonl.com/csp/
• If you have contracted directly with the owner of the land, the 45
  day time to register a lien begins to run on the date on which you completed or
  abandoned the project, unless a certificate of substantial performance was
  published prior to that date, in which case the date of publication governs.
• If you are a subcontractor, the 45 day period begins to run on the
  date of last supply of services or materials, unless a certificate was published
  prior to that date, in which case the date of publication governs.
• A lien exists once materials or labour are supplied to a project.  To
  keep a lien, it must be “preserved”  by registering it on title and “perfected”
  by commencing a court action or sheltering under another perfected lien.  If a
  lien is lost it cannot be revived.
• Are you aware of the proper legal name of the party with whom you
  have contracted?
• Are you aware of the name of the owner of the project and the
  municipal address to allow title searches to be completed?
• If possible, you should obtain the proper legal description of the
  project to ensure that you are able to register your lien on the correct
  property.
• Have you calculated the amount owing, and to be included in the lien,
  without interest?  The Construction Lien Act does not allow you to lien for
  interest, so it will be necessary to be able to separate the principal amount of
  the account.
• Is there a Labour and Material Payment Bond against which you could
  advance a claim

The above information will be useful in expediting your claim and
ensuring that you do not run out of time before a claim for lien is registered.