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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