The following definitions apply in this Act.
“Adjudicator Authority” means the Adjudicator Authority designated under subsection 18(1).(autorité des intervenants experts)
“contract” means a contract between an owner or an owner’s agent and a contractor relating to the supply of services or materials for an improvement and includes an amendment to that contract. (contrat)
“contractor” means a person contracting with, or employed directly by, the owner or the owner’s agent to supply services or materials for an improvement but does not include a worker. (entrepreneur)
“court” means The Court of King’s Bench of New Brunswick and includes a judge of that court.(cour)
“Crown” means the Crown in right of the Province and includes a Crown corporation or Crown agency.(Couronne)
“improvement” means, in respect of any land, (amélioration)
(a) any alteration, addition or capital repair to the land,
(b) any construction, erection or installation on the land, including the installation of industrial, mechanical, electrical or other equipment on the land or on any building, structure or works on the land that is essential to the normal or intended use of the land, building, structure or works, or
(c) the complete or partial demolition or removal of any building, structure or works on the land.
“local government” means a local government as defined in subsection 1(1) of the Local Governance Act.(gouvernement local)
“materials” means movable property(matériaux)
(a) that becomes, or is intended to become, part of an improvement, or that is used directly in the making of an improvement, or that is used to facilitate directly the making of an improvement, or
(b) that is equipment rented without an operator for use in the making of an improvement.
“Minister” means the member of the Executive Council designated by the Lieutenant-Governor in Council to administer this Act and includes any person designated by the member to act on the member’s behalf.(ministre)
“owner” means any person having an estate or interest in land on or in respect of which an improvement is made at the person’s request and either(propriétaire)
(a) on the person’s credit,
(b) on the person’s behalf,
(c) with the person’s privity or consent, or
(d) for the person’s direct benefit.
“payment certifier” means the person on whose certificate payments are made on a contract. (certificateur pour paiement)
“special purpose entity” means a person or other entity, whether incorporated or not, that enters into a project agreement referred to in section 3.(entité ad hoc)
“supply of services” means work done or services performed, and includes(fourniture de services)
(a) the rental of equipment with an operator and the wages of that operator, and
(b) if the making of a planned improvement is not commenced, the supply of a design, plan, drawing or specification by an architect or engineer that in itself enhances the value of the owner’s interest in the land.
“wages” means remuneration or compensation of any kind of a worker for the supply of services, whether by time, as piece work or otherwise.(salaire)
“worker” means an individual employed for wages in any kind of labour, whether employed under a contract of service or not.(ouvrier)
In this Act, a reference to “services or materials” includes both services and materials, unless the context otherwise requires.
Subject to this section and the regulations, this Act and the regulations apply with the necessary modifications if the Crown or a local government, as the owner, enters into a project agreement with a special purpose entity that requires the entity to finance and undertake an improvement on behalf of the Crown or local government, as the case may be, and, for that purpose, to enter into an agreement with a contractor in respect of the improvement.
The special purpose entity is deemed to be the owner in place of the Crown or a local government, and the agreement between the special purpose entity and the contractor is deemed to be the contract for the purposes of this Act and the regulations.
Subsection 8(1) does not apply to a project agreement referred to in subsection (1), and nothing in Part 2 prevents the inclusion of a provision in the project agreement that makes the giving of a proper invoice conditional on the prior certification of a payment certifier or on the special purpose entity’s prior approval.
Part 2 does not apply to
(a) any portion of a project agreement entered into between the Crown or a local government, as the owner, and a special purpose entity that requires the entity to operate or maintain an improvement on behalf of the Crown or local government, or
(b) any contract or subcontract under a portion of a project agreement referred to in paragraph (a).
(a) all contracts entered into on or after the commencement of this section,
(b) all subcontracts under a contract referred to in paragraph (a), and
This Act or any provision of it and the regulations under this Act or any provision of them do not apply to
(a) any person or class of persons prescribed by regulation,
(b) any contract or class of contracts prescribed by regulation,
(c) any improvement or class of improvements prescribed by regulation, or
(d) any other matter prescribed by regulation.
A contract or subcontract referred to in subsection (1) is deemed to be amended to the extent necessary to conform with this Act.
The provisions of this Act apply despite any agreement to the contrary, and any waiver or release of the rights, benefits or protections provided under this Act is void.
This Act binds the Crown.
For the purposes of this Part, “proper invoice” means a written bill or other request for payment for services or materials for an improvement under a contract that contains the information set out in subsection (2) and, subject to subsection 8(1), meets any other requirements specified in the contract.
A proper invoice shall contain the following information:
(a) the contractor’s name and address;
(b) the invoice date;
(c) the amount payable for the services or materials that were supplied and the payment terms;
(d) the date or the period during which the services or materials were supplied;
(e) a description, including quantity, if appropriate, of the services or materials that were supplied;
(f) the authority under which the services or materials were supplied, whether in the contract or otherwise;
(g) the name, title, telephone number and email and mailing addresses of the person to whom payment is to be sent; and
(h) any other information prescribed by regulation.
A contractor shall give a proper invoice to an owner on a monthly basis, unless the contract provides for a different schedule.
A provision in a contract that makes the giving of a proper invoice conditional on the prior certification of a payment certifier or on the owner’s prior approval is of no force or effect.
Subsection (1) does not apply to a provision in a contract that provides for the testing and commissioning of the improvement or of services or materials supplied under the contract.
For greater certainty, subsection (1) has no application to a provision in a contract that provides for the certification of a payment certifier or the owner’s approval after a proper invoice is given.
A contractor may revise a proper invoice after giving it to the owner if
(a) the owner has agreed to the revision in advance,
(b) the invoice date has not changed, and
(c) it continues to meet the requirements of section 6.
Subject to section 11, an owner shall pay the amount payable under a proper invoice no later than 28 days after receiving the proper invoice from the contractor.
An owner who disputes a proper invoice may refuse to pay all or any portion of the amount payable under the proper invoice within the time specified in section 10 if the owner gives the contractor a notice of non-payment no later than 14 days after receiving the proper invoice.
A notice of non-payment shall be in a form prescribed by regulation and shall include the following information:
(a) the amount under the proper invoice that the owner refuses to pay; and
(b) the reasons for non-payment.
The portion of the amount payable under a proper invoice that is not subject to a notice of non-payment remains payable within the time specified in section 10.
Subject to subsection (6), a contractor who receives full payment of the amount payable under a proper invoice from an owner within the time specified in section 10 shall pay the amount payable to each subcontractor who supplied services or materials included in the proper invoice under a subcontract with the contractor no later than seven days after receiving the payment from the owner.
Subject to subsection (6), a contractor who receives a portion of the amount payable under a proper invoice from an owner within the time specified in section 10 shall pay from the amount received the amount payable to each subcontractor who supplied services or materials included in the proper invoice under a subcontract with the contractor no later than seven days after receiving the payment from the owner.
For the purposes of subsection (2), if more than one subcontractor is entitled to payment, the amount payable shall be determined as follows:
(a) if the amount not paid by the owner is specific to services or materials supplied by a particular subcontractor or subcontractors, the remaining subcontractors shall be paid and any amount paid by the owner in connection to the services or materials supplied by the subcontractors that are implicated in the dispute shall be paid to them on a proportionate basis; or
(b) in any other case, all the subcontractors shall be paid on a proportionate basis.
Subject to subsections (5) and (6), if an owner does not pay the full amount payable under a proper invoice within the time specified in section 10, the contractor shall pay the amount payable to each subcontractor who supplied services or materials included in the proper invoice under a subcontract with the contractor, to the extent that the subcontractor was not paid fully under subsection (2), no later than 35 days after giving the proper invoice to the owner.
(a) a notice of non-payment in the form prescribed by regulation that includes
(i) a statement that all or a portion of the amount payable to the subcontractor is not being paid within the time specified in subsection (4) due to non-payment by the owner,
(ii) the amount not being paid, and
(iii) an undertaking to refer the matter between the contractor and the owner to adjudication in accordance with Part 3 no later than 21 days after giving the notice of non-payment to the subcontractor, and
(b) a copy of any notice of non-payment given to the contractor by the owner under section 11.
A contractor who disputes the entitlement of a subcontractor to payment of an amount under a subcontract may refuse to pay all or a portion of the amount within the time specified in subsection (1), (2) or (4), as the case may be, if, no later than the time specified in subsection (7), the contractor gives to the subcontractor a notice of non-payment in the form prescribed by regulation that includes the amount that the contractor refuses to pay and the reasons for the non-payment.
(a) seven days after receiving a notice of non-payment from an owner under section 11, or
(b) if no notice of non-payment was given by the owner, 35 days after giving a proper invoice to the owner.
Subject to subsection (7), a subcontractor who receives full payment under subsection 12(1) shall pay the amount payable to each subcontractor who supplied services or materials included in the proper invoice under a subcontract with that subcontractor no later than seven days after receiving the payment from the contractor.
Subject to subsection (7), a subcontractor who receives a portion of the amount payable under a proper invoice from a contractor shall pay from the amount received the amount payable to each subcontractor who supplied services or materials included in the proper invoice under a subcontract with that subcontractor no later than seven days after receiving the payment from the contractor.
For the purposes of subsection (2), if more than one subcontractor is entitled to payment under a proper invoice, the amount payable shall be determined as follows:
(a) if the amount not paid by the contractor is specific to services or materials supplied by a particular subcontractor or subcontractors, the remaining subcontractors shall be paid and any amount paid by the contractor in connection to the services or materials supplied by the subcontractors that are implicated in the dispute shall be paid to them on a proportionate basis; or
(b) in any other case, all the subcontractors shall be paid on a proportionate basis.
Subject to subsections (6) and (7), if a contractor does not pay the full amount payable to a subcontractor within the time specified in subsection 12(1), the subcontractor shall, no later than the time specified in subsection (5), pay the amount payable to each subcontractor who supplied services or materials included in the proper invoice under a subcontract with that subcontractor, to the extent that the subcontractor was not paid fully under subsection (2).
For the purposes of subsection (4), a subcontractor shall pay the amount payable no later than
(a) seven days after the subcontractor receives payment from the contractor, or
(b) if no payment is made by the contractor to the subcontractor, 42 days after the contractor gave the proper invoice to the owner.
(a) a notice of non-payment in the form prescribed by regulation that includes
(i) a statement that all or a portion of the amount payable to the subcontractor is not being paid within the time specified in subsection (4) due to non-payment by the contractor,
(ii) the amount not being paid, and
(iii) unless the non-payment by the contractor is a result of non-payment by the owner, an undertaking to refer the matter between the subcontractor and the contractor to adjudication in accordance with Part 3 no later than 21 days after giving the notice of non-payment to the subcontractor, and
(b) a copy of any notice of non-payment received by the subcontractor in relation to the proper invoice.
A subcontractor who disputes the entitlement of another subcontractor to payment of an amount under a subcontract may refuse to pay all or a portion of the amount within the time specified in subsection (1), (2) or (4), as the case may be, if, no later than the time specified in subsection (8), the subcontractor gives to the other subcontractor a notice of non-payment in the form prescribed by regulation that includes the amount that the subcontractor refuses to pay and the reasons for the non-payment.
(b) if no notice of non-payment was given by the contractor, 42 days after a proper invoice was given to the owner.
If a subcontractor who is required to make payments in accordance with this section requests confirmation of the date a contractor gave a proper invoice to an owner, the contractor shall provide that confirmation to the subcontractor as soon as the circumstances permit.
This section applies with the necessary modifications to a subcontractor who is entitled to payment in accordance with this section and to any amounts payable by that subcontractor to another subcontractor who supplied services or materials included in the proper invoice.
An owner, contractor or subcontractor who is required to make a payment under section 10, 12 or 13 may give as a reason for non-payment the retention of an amount that is, as between the owner, contractor or subcontractor, as the case may be, and the contractor or subcontractor to whom they are required to make a payment, equal to the balance in the favour of the owner, contractor or subcontractor of all outstanding debts, claims or damages that are related to the contract under which the proper invoice was given or related to a subcontract for the supply of services or materials that were included in the proper invoice, as the case may be, or, if the contractor or subcontractor to whom the owner, contractor or subcontractor is required to make a payment becomes insolvent, equal to the balance of all outstanding debts, claims or damages whether or not they are related to the contract under which the proper invoice was given or related to a subcontract for the supply of services or materials that were included in the proper invoice, as the case may be.
If a reason for non-payment includes the retention of an amount referred to in subsection (1), the notice of non-payment shall include full particulars of the amount being retained and shall be accompanied by copies of any document relied on to support the retention.
Nothing in this Part relieves an owner from a requirement to retain an amount claimed in a written notice of lien under section 31 of the Construction Remedies Act or from a requirement to retain a holdback under section 34 of that Act, and any requirement to make a payment under this Part is subject to the requirements under those sections.
Nothing in this Act in any way reduces, derogates from or alters the obligations of a contractor or subcontractor to pay wages as provided for by statute, contract or collective agreement.
The Minister may, in accordance with any criteria prescribed by regulation, designate an Adjudicator Authority.
The Adjudicator Authority shall perform the duties and may exercise the powers prescribed by regulation.
The Minister may act as the interim Adjudicator Authority during any period in which an Adjudicator Authority has not been designated under subsection 18(1).
Subject to subsection (3), the Minister shall perform the duties and may exercise the powers of the Adjudicator Authority when acting as the interim Adjudicator Authority.
The Minister shall not perform any duty or exercise any power of the Adjudicator Authority that is prescribed by regulation.
A party to a contract or subcontract may refer a dispute with respect to payment under the contract or subcontract to adjudication under this Part.
For greater certainty, a dispute with respect to payment includes
(a) a dispute with respect to change orders under a contract or subcontract, whether approved or not, and a dispute with respect to a proposed change order, and
(b) a dispute with respect to the valuation of services or materials under a contract or subcontract.
A dispute with respect to payment may be referred to adjudication regardless of whether the payment is the subject of a notice of non-payment under Part 2.
This Part applies to any other matter prescribed by regulation.
An adjudication shall be conducted in accordance with this Part and the procedures established by regulation and by the Adjudicator Authority.
In the case of a conflict between an adjudication procedure established by the Adjudicator Authority and the procedures under this Part or the regulations, the procedures under this Part and the regulations prevail.
Adjudication procedures set out in a contract or a subcontract apply only to the extent that they do not conflict with the procedures referred to in subsection (1), and their application is subject to the exercise of the powers of the adjudicator.
A party to a contract or subcontract who intends to refer a dispute to adjudication shall give the other party a written notice of adjudication in the form prescribed by regulation.
An adjudication may not be commenced if a party gives the notice of adjudication after the date the contract or subcontract is completed, unless the parties to the adjudication agree otherwise.
An adjudication may address only a single dispute, unless the parties to the adjudication and the adjudicator agree otherwise.
A party may refer a dispute to adjudication even if the matter is the subject of a court proceeding or an arbitration under the Arbitration Act, unless the proceeding or arbitration has been finally determined.
An adjudication may be conducted only by an adjudicator who meets the requirements prescribed by regulation and who has been authorized to do so by the Adjudicator Authority in accordance with the regulations.
A provision in a contract or a subcontract that purports to appoint an adjudicator for the purposes of this Act is of no force or effect.
Subject to this Act and the regulations, an adjudicator may conduct an adjudication in the manner that the adjudicator considers appropriate.
An adjudicator shall perform the duties and may exercise the powers prescribed by regulation.
An adjudicator shall conduct an adjudication in an impartial and independent manner.
Subject to the regulations, an adjudicator’s determination shall be in writing and shall include the reasons for the determination.
The determination and reasons of the adjudicator are admissible as evidence in court.
A party to an adjudication who is required under a determination to pay an amount to another person shall pay the amount within the time prescribed by regulation.
The requirement referred to in subsection (1) does not relieve an owner from a requirement to retain an amount claimed in a written notice of lien under section 31 of the Construction Remedies Act or from a requirement to retain a holdback under section 34 of that Act, and any requirement to make a payment under a determination is subject to the requirements under those sections.
Interest begins to accrue on an amount required to be paid under a determination that is not paid when it is due to be paid at the rate prescribed by regulation or, if the contract or subcontract specifies a higher rate for that purpose, at the rate specified.
If an amount payable to a contractor or subcontractor under a determination is not paid when it is due to be paid, the contractor or subcontractor may suspend further work under the contract or subcontract, as the case may be, until the amount determined in accordance with the regulations is paid.
A suspension of work under subsection (1) does not constitute a breach of the terms of a contract or subcontract, as the case may be.
A party to an adjudication may, no later than the time prescribed by regulation, file the determination of the adjudicator with the court in accordance with the regulations, and, when so filed, the determination may be enforced as an order of the court.
The determination of a dispute with respect to payment by an adjudicator is binding on the parties to the adjudication until
(a) a determination of the matter by a court,
(b) a determination of the matter in an arbitration conducted under the Arbitration Act,
(c) a written agreement between the parties respecting the matter, or
(d) the determination is set aside on an application for judicial review under section 36.
With the exception of an application under section 36, nothing in this Part restricts the authority of a court or an arbitrator acting under the Arbitration Act to consider the merits of a matter determined by an adjudicator.
If an adjudicator makes a determination in relation to a contract before the contract has been certified or declared to be substantially performed under section 41 of the Construction Remedies Act,
(a) any amount required to be paid under the determination by a party to the contract shall be added to the contract price, to the extent that it is not already included, for the purpose of calculating whether the contract has been substantially performed for the purposes of the Construction Remedies Act, and
(b) any amount determined by the adjudicator to have been overpaid by a party to the contract shall be deducted from the contract price, to the extent that it is already included, for the purpose of calculating whether the contract has been substantially performed for the purposes of the Construction Remedies Act.
Subsection (1) ceases to apply if the determination in relation to the contract ceases to be binding on the parties.
Subject to the regulations, the parties to an adjudication shall bear their own costs of the adjudication.
A party to an adjudication may make an application for judicial review of a determination of an adjudicator on any grounds prescribed by regulation.
An application under subsection (1) shall be made in accordance with the regulations no later than 30 days after the adjudicator’s determination is communicated to the parties.
To the extent that they are not inconsistent with this Act and the regulations, the Rules of Court apply to an application under subsection (1).
No action or other proceeding lies or shall be instituted against the any of the following persons for anything done or purported to be done in good faith by any of them or in relation to anything omitted in good faith by any of them in the exercise or intended exercise of a power or duty under this Act or the regulations:
(a) the Minister;
(b) the Adjudicator Authority;
(c) an adjudicator; and
(d) any person who is acting or who has acted under the authority of this Act or the instructions of a person referred to in this section.
An adjudicator is not is compellable to give evidence in any court or in any proceeding of a judicial nature concerning any information that comes to the adjudicator’s knowledge in the exercise of the adjudicator’s powers or performance of the adjudicator’s duties in relation to an adjudication under this Part.
A subcontractor who has a subcontract for the supply of services or materials may, at any time, by written request, require from a contractor or another subcontractor from whom the subcontractor is entitled to receive payment the following information:
(a) the due dates for any payments to the contractor or other subcontractor relating to the supply of services or materials that is the subject of the subcontract;
(b) confirmation of the contractor’s or other subcontractor’s receipt of payment relating to the supply of services or materials by the subcontractor;
(c) the date on which the contractor gave the owner a proper invoice in respect of which the subcontractor who has made the request supplied services or materials; and
(d) any other information prescribed by regulation.
A contractor or subcontractor who has received a request for information under section 39, shall give to each subcontractor who has requested information, immediately on receiving a payment, notice of the date and amount of a payment made to the contractor or subcontractor, as the case may be, that relates to the services or materials supplied by the subcontractor.
Notice given under subsection (1) may be given in writing to the requesting subcontractor, posted on a website that can be accessed by the subcontractor free of charge or given in any other manner prescribed by regulation.
A contractor or subcontractor who does not provide the required information on a request for information under section 39, or who knowingly or negligently misstates the required information, is liable to the requesting subcontractor for any damages suffered as a result.
On application, the court may at any time order a contractor or subcontractor to comply with a request for information under section 39, and when making the order the court may make any order as to costs that it considers appropriate in the circumstances.
A notice or other document given or served under this Act or the regulations shall be given or served in a manner or by a method prescribed by regulation.
The Minister is responsible for the administration of this Act and may designate one or more persons to act on the Minister’s behalf.
The Lieutenant-Governor in Council may make regulations
(a) respecting the application of the provisions this Act and the regulations to a project agreement referred to in subsection 3(1), including exempting project agreements from the application of the provisions of this Act and the regulations;
(b) prescribing persons or classes of persons, contracts or classes of contracts, improvements or classes of improvements or other matters for the purposes of subsection 4(2);
(c) prescribing information for the purposes of paragraph 6(2)(h);
(d) prescribing the form and content of notices of non-payment for owners, contractors and subcontractors;
(f) prescribing criteria for the purposes of subsection 18(1);
(h) prescribing matters for the purposes of subsection 20(4);
(i) respecting the setting of fees, costs and other charges by the Adjudicator Authority;
(j) governing fees, costs and other charges not set by the Adjudicator Authority, including prescribing fees, costs or charges or prescribing methods for ascertaining, calculating or determining fees, costs or charges;
(k) governing adjudications, including, without limitation,
(i) establishing procedures for referring disputes to adjudication,
(ii) prescribing the form and content of a notice of adjudication,
(iii) prescribing the content of a response to a notice of adjudication,
(iv) prescribing the persons to whom a notice of adjudication or a response is required to be given,
(v) establishing procedures for conducting adjudications,
(vi) respecting the consolidation of adjudications involving the same matter or related matters, including the application of the provisions of this Act and the regulations to a consolidated adjudication,
(vii) respecting withdrawals from or terminations of adjudications,
(viii) respecting consequences for failing to complete an adjudication, and
(ix) respecting the responsibility for the payment of the costs of an adjudication;
(l) governing adjudicators, including, without limitation,
(i) prescribing requirements for the purposes of subsection 26(1),
(ii) respecting authorizations for the purposes of subsection 26(1), including the issuance, suspension or cancellation of an authorization,
(iii) respecting the manner in which an adjudicator may be selected or appointed to act in an adjudication,
(iv) prescribing duties and powers for the purpose of subsection 27(2),
(v) respecting the responsibility for the payment of the fees and expenses of adjudicators,
(vi) respecting training programs for adjudicators;
(m) respecting a public registry of adjudicators, including, without limitation, prescribing information to be included in the registry;
(n) governing determinations made by adjudicators, including, without limitation,
(i) respecting the time for making determinations, including extensions of the time,
(ii) respecting the effect of a determination made after the time referred to in subparagraph (i), and
(iii) respecting the time for and manner of communicating or correcting determinations;
(o) prescribing a time for the purposes of subsection 29(1);
(p) respecting the responsibility for the payment of the costs related to a suspension of work under subsection 31(1) and determining amounts for the purpose of that subsection;
(q) prescribing the time for the purposes of section 32;
(r) respecting the filing of determinations made by adjudicators with the court;
(s) respecting applications for judicial review of a determination made by an adjudicator;
(t) prescribing grounds for the purposes of subsection 36(1);
(u) prescribing information for the purposes of paragraph 39(d);
(v) prescribing other manners of giving notice for the purpose of subsection 40(2);
(w) governing the giving of proper invoices, notices of non-payment, notices of adjudication, responses to notices of adjudication and other documents required to be given or served under this Act or the regulations, including, without limitation,
(i) prescribing the manner or method of giving or serving a document, including by electronic means,
(ii) prescribing the time for giving or serving a document, and
(iii) specifying when a document is deemed to have been given or served;
(x) defining words and expressions used but not defined in this Act for the purposes of this Act, the regulations or both.