Construction Claims and COVID-19: What is Still Available?

March 24, 2020

Construction Claims and COVID-19: What is Still Available?

The status of what businesses can remain
open, in what capacity, and with access to whom, is ever-changing in the midst
of the COVID-19 pandemic. For ongoing construction projects, or those for which
a party has recently performed work, it is important to remember which claims
may be available, and to monitor submission deadlines and protocols.

While a party may no longer be able to perform
work to the same extent, there are numerous avenues for unpaid parties to seek recourse
for unpaid accounts.

Courthouse
Filings

As of March 20, 2020, the Alberta Court
of Queen’s Bench “suspended all filing deadlines under the Alberta Rules of Court, with the exception of those Rules
applicable to the commencement of proceedings, including originating
applications.” See the notice here.

As such, as of the time of publication
(March 24, 2020 afternoon), parties are still required to file Statements of
Claim to preserve statutory limitation periods. But all other filing deadlines under
the Alberta Rules of Court are
suspended.

However, claims under the Builders’ Lien Act, the Public Works Act, and labour and
material payment bond claims all fall outside the gamut of the Rules. As such,
the ability to make such claims, and all applicable deadlines, remain in
effect.

Builders’
Lien Claims

Currently, the Alberta Land Titles Office
remains open for registrations. Physical counter service is closed, but “documents
submitted to Land Titles Offices are to be placed in the after-hours drop box.
Land Titles staff will retrieve documents regularly throughout the day and will
handle all time dependent documents as per usual procedures.”

As above, this means that the ability to
register a builders’ lien remains. But along with this, the subsequent
requirements to file a Statement of Claim and register a certificate of lis
pendens also remain, so care should be taken to ensure all deadlines are met for
lien registration and enforcement.

After lien registration, any Court
Applications to deal with a lien, unless by consent, cannot be argued until May
1 at the earliest given the current suspension of Court sittings. Desk
applications by consent, for example to discharge a lien via posting security
into Court, can still be done.

A link to the Builders’ Lien Act is here.

Public
Works Act Claims

As with builders’ liens, Public Works Act claims can still be submitted. These are done via
registered mail to the Crown. As long as the postal system is operational,
claims should still be received. Public
Works Act
claims only apply to Crown projects, but are a powerful tool for
unpaid subcontractors.

A link to the Public Works Act is here.

Labour
and Material Payment Bond Claims

For projects with surety bonding in
place, all claim submission deadlines remain. These deadlines are a matter of
private contract, not statute. So even if further government closures and
shutdowns are imposed, an unpaid party should still be able to submit a bond
claim. As with builders’ liens and Public
Works Act
claims, careful attention to the deadlines for claim submission
is essential.

If you are in a situation where you are
unpaid for work performed, and would like to explore potential claims which may
be available, Field Law is happy to assist.

Anthony Burden

Anthony Burden

Anthony is a litigation Associate at Field Law, practicing in the areas of construction, general litigation and insurance. He has experience defending and prosecuting builders' lien claims, deficiency claims, contract and payment disputes and other general litigation disputes.

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