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Information

Posted on November 1, 2007 | Posted in Construction

Section 39 of the Construction Lien Act allows a party further down the construction ladder to obtain information regarding the contracts between parties one and two rungs up the construction ladder. A subcontractor, who is not being paid, wants to know what is happening between the owner and the general contractor. Section 39 requires an owner or general to give the following information to subs or subsubs: the name of the parties to the contract, the contract price, the state of accounts, and a copy of any labour and material bond. The information a general or sub is required to provide regarding a subcontract is the same as for the prime contract, in addition to providing confirmation whether there is a provision in the subcontract for certification and a statement whether the subcontract has been certified as complete.

Usually the answers that a responding party gives to the section 39 request are relatively terse. Are these terse answers sufficient? This question and others are answered in Comstock Canada Ltd. v. Durr Systems, Inc., a 2007 decision of the Ontario Superior Court of Justice.

Stonewall 

A sub registered a claim for lien. The owner posted security and vacated the lien from title. The sub made a section 39 request for information. The owner refused to supply any information.

The owner first argued that since it had posted security to remove the lien, it was no longer forced to provide information. In essence, the fight was now between the general and the sub.

The judge felt that this argument overlooked “the distinction between the source of the recovery and the merits of the claim.” The information may not be relevant to the source of the recovery, but could be very relevant to the merits of the claim. In any case, section 39 is not limited to information that is relevant. Further, the person supplying the information need not be a party to an action.

The owner also argued that since discoveries were upcoming, it need not give the information. The sub could obtain the information at the discoveries. The judge stated, “I do not see any reason to limit the application of s. 39 to situations where there is no discovery or where the discovery has been completed.”

Finally, the owner then argued that there was a settlement between the owner and the general that had a confidentiality agreement provision. The easy answer to that argument was “So what!” Two parties contracting between themselves cannot abrogate the rights of others under section 39.

Detail 

The interesting aspect of the decision dealt with the detail that the judge ordered the owner to provide. He stated that the information must contain at least the total amount the general billed, the total amount the owner paid, the dates of all invoices the general submitted relating to the work that the sub did, and the dates and amounts of all payments from the owner. Further, he noted, “Depending on the facts of the case and the degree to which defendants’ bills can be related to the plaintiff’s claim, I can foresee a court ordering more detailed information. For instance, if the lien dispute focuses on a particular extra then it would seem reasonable that the information about that extra should be broken down.”

While this degree of detail might be helpful for a lien claim, it is crucial for a trust claim. In a trust claim, the plaintiff has to prove that the defendant received money that it did not pay down in the normal course; it is through the owner/payor that the plaintiff can determine what really happened.

Use 

By the way, a request for information under section 39 need not come only from a lawyer. There is no reason why a claimant cannot make the request to the payor. Accordingly, if, for example, a sub is not being paid, the sub should quickly send a section 39 request for information to the owner.

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