Information is power: know your right to information under the Construction Act

There are good reasons to exercise your rights under section 39 of the Construction Act. Some of the reasons include:

1. You need information to properly preserve your lien (like the correct names of the parties, or whether a landlord paid a tenant allowance);
2. You want to know if there is a labour and material bond to secure payment; or,
3. You want information about the statement of accounts to see if your work has been paid by the owner, or whether there is sufficient holdback for your lien.

Exercising a right to information under section 39 of the Construction Act relays no risks and provides many benefits. This article provides the details about obtaining information about your construction project.

Who has the right to information?

1. a person or corporation with a lien
2. beneficiary of a trust under the Construction Act
3. mortgagee

Who has to provide the information (if asked)?

1. owner
2. contractor
3. subcontractor
4. mortgagee
5. landlord

What information can be requested?

The information requested, includes:

• the names of the parties to the contract (or lease) and the date on which the contract was entered into and the date on which any applicable procurement process was commenced
• the contract or subcontract price
• the state of accounts between the owner and the contractor:
  • the price of the services or materials that have been supplied under the contract or subcontract;
  • the amounts paid under the contract or subcontract;
  • the amount of the applicable holdbacks (which includes notice holdback);
  • the balance owed under the contract or subcontract;
  • any amount retained under s. 12 (set-off by trustee) or under ss. 17 (3) (lien set-off); and
• copy of any labour and material bond
• a statement of whether the contract provides that the payment under the contract shall be based on the completion of specified phases or the reaching of other milestones.

Landlords must also provide which of the amounts paid under the contract or subcontract constitute any part of the payment of the tenant allowance. Landlords will need to be mindful of their new obligations under the Act by reviewing their lease agreements for compliance with the new provisions.

There may be additional information that may be requested under section 39 of the Construction Act: https://www.ontario.ca/laws/statute/90c30#BK85

When does the information have to be provided?

Within 21 calendar days of the request.

How can the information be requested?

There is no prescribed form - so it can be in the form of a letter or email – but it needs to be in writing.

Are there consequences for not providing the information?

If the information is not provided or is negligently misstated, then the person required to provide the information is liable to the person who made the request for any damages suffered as a result. A person who does not provide the required information may also be ordered to do so by the court, and may be liable for the requester’s legal costs.

This article is not legal advice and is provided for informational purposes only