will implicitly have the right to decide whether an invoice is “proper”
within the meaning of the Act. If the adjudicator has to decide this
type of issue to determine whether they have jurisdiction to settle a
dispute, we expect the courts will defer to this decision over their jurisdiction
so long as it is reasonable.
The legislation provides that adjudication will be very quick. Once
an adjudicator is chosen by the parties (or the Authority if the parties
cannot agree), the party referring the dispute to adjudication will
have five days to submit copies of all relevant documents to the adjudicator.
Once the documents are submitted, the adjudicator will
have 30 days to make a written determination. If the parties agree,
that date may be extended by 14 days at the adjudicator’s request. The
parties may also agree to another deadline with the adjudicator’s consent.
A determination made by the adjudicator after the prescribed
time will be of no force or effect.
Once the determination is made, the party who is found liable to
make a payment must pay the amount no later than 10 days after the
determination is made. A party who has not been paid can file the determination
with the court to have it enforced as a court order for up
to two years.
The adjudicator’s determination and the ensuing payments are only
interim. If one of the parties is not satisfied, it can start a court or
ordinary arbitration proceeding. The circumstances in which a party
can appeal an interim adjudicator’s determination are limited to serious
errors of procedure, such as the legal incapacity of one of the parties,
the invalidity of the contract or adjudication by a person who is
not certified. Any disagreement with an adjudicator’s determination
on the merits will have to wait for a determination by a court or regular
To address concerns that the adjudication system may be misused,
if an adjudicator determines that a party to the adjudication has acted
in a manner that is frivolous, vexatious, an abuse of process or
other than in good faith, the adjudicator may provide, as part of his
determination of the matter, that the party be required to pay some or
all of the other party’s costs, any part of the fees that would otherwise
be payable by the other party, or both. Therefore, ample consideration
should be given prior to refusing to make a payment or proceeding to
adjudication for a particular project.
Right to suspend work after adjudication,
determination and non-payment
After the adjudication process is complete, and a determination
is made, if an amount deemed payable is not paid within 10 days,
only then can a contractor or subcontractor suspend work. A contractor
or subcontractor does not have a de facto right to simply
send an invoice and then suspend work for failure to pay. However,
if a contractor or subcontractor follows the process correctly,
and does suspend work in accordance with the bill, then the contractor
or subcontractor is entitled to reasonable costs incurred,
including interest, costs of suspending the work and costs of resuming
Interest on late payments
Interest begins to accrue on an amount that is not paid when
due at the pre-judgment interest rate in effect pursuant to
the Saskatchewan Pre-judgment Interest Act. If the contract or
subcontract specifies a different interest rate for the purpose, that
rate will apply. Interest also accrues on amounts deemed payable
by the adjudicator in a similar fashion.
Miller Thomson will continue to follow these important changes
impacting construction projects in Saskatchewan in the future as
the bill evolves and regulations are introduced.
As always, connect and talk to one of our Saskatchewan Construction
Team lawyers about these changes and how they may affect
your current or future projects. If you have any questions about
Saskatchewan’s Bill 152, the proposed Saskatchewan prompt
payment process, or general questions about construction law
or related matters, please feel free to contact Troy Baril of our
Saskatchewan Construction Team at firstname.lastname@example.org
This article is just a general overview of the proposed changes. Stay
tuned as more articles will follow. Along the way as the process
advances, we will be exploring and providing further updates as
Bill 152 makes its way through the legislature.
This publication is provided as an information service and may
include items reported from other sources. We do not warrant its
accuracy. This information is not meant as legal opinion or advice.
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thinkbigmagazine.ca | Quarter 3 2019 | Think BIG 53