Builders' Liens (Prompt Payment) Regulation

Builders' Liens (Prompt Payment) Regulation, M.R. 113/2024 The Builders' Liens Act , C.C.S.M. c. B91 Regulation 113/2024 Registered November 1, 2024 bilingual version (HTML) Table of Contents Section 1 Definitions 1.1 Meaning — "completed" 1.2 How to give notice ADJUDICATION AUTHORITY 2 Designation 3 Additional duties and powers 4 Training program 5 Code of conduct 6 Adjudicator registry 7 Annual report 8 Information available to the public 9 Complaints ADJUDICATORS 10 Requirements for registration as adjudicator 11 Qualification certificate 12 Requirements for adjudicators 12.1 Suspension and cancellation of qualification certificate ADJUDICATION 13 Province-wide availability 14 Administrative support 15 Conducting the adjudication 15.1 Copy of notice to adjudication authority 15.2 Response to adjudication notice 15.3 Consolidation of adjudications 15.4 Giving required documents 15.5 Sharing other documents 15.6 Exercising powers 15.7 Determination 15.8 Adjudicator unable to conduct adjudication 15.9 Failure of adjudicator to complete adjudication COMING INTO FORCE 16 Coming into force Schedule Definitions 1(1) The following definitions apply in this regulation. "Act" means The Builders' Liens Act . («  Loi  ») "adjudicator registry" means the registry of adjudicators established under clause 104(3)⁠(c) of the Prompt Payment Division that contains the requirements set out in subsection 6(1). (« registre des intervenants experts ») "code of conduct" means the code of conduct established and maintained under subsection 5(1) that contains the requirements set out in subsection 5(2). (« code de conduite ») "industry sectors" means the sectors of the construction industry referred to in subsection (2). (« secteurs de l'industrie ») "Prompt Payment Division" means sections 79 to 125 of the Act. (« section sur le paiement rapide ») "training program" means the training program established under section 4. (« programme de formation ») 1(2) Subject to the Act, the following are industry sectors for the purpose of this regulation: 1. Residential 2. Commercial 3. Industrial 4. Public buildings 5. Infrastructure 6. Any other industry sector that the adjudication authority considers to be relevant Meaning — "completed" 1.1 For the purpose of subsection 103(2) of the Act, a contract or sub-contract is considered to be completed 90 days after the date on which the work or a substantial part of the work is ready for use or is being used for the purpose intended and any work outstanding under the contract or sub-contract cannot be completed expeditiously for reasons beyond the control of the contractor or sub-contractor. M.R. 27/2025 How to give notice 1.2(1) A notice or document that is required to be given under the Prompt Payment Division or this regulation must be given in one of the following manners: (a) by leaving it with the recipient; (b) by mailing it by ordinary mail to the address provided by the recipient; (c) by sending it by e-mail or other method of electronic communication provided by the recipient that provides confirmation that it was sent but only if the recipient agrees in writing that notices or documents may be given in this manner; (d) by faxing it to the fax number provided by the recipient but only if the recipient agrees in writing that notices or documents may be given in this manner. 1.2(2) A notice or document that is given by ordinary mail under this section is deemed to be received on the fifth day after it is mailed. 1.2(3) In this section, "recipient" means the owner, contractor, sub-contractor or other person to whom the notice or document is required to be given. M.R. 27/2025 ADJUDICATION AUTHORITY Designation 2(1) For the purpose of clause 104(1)⁠(b) of the Prompt Payment Division, the minister may designate as the adjudication authority an entity that submits an application in the time and manner specified by the minister if the entity meets the following criteria: 1. The entity is a not-for-profit corporation. 2. The board consists of the following: (a) no more than two directors who represent the interests of contractors, trades and suppliers in the construction industry; (b) no more than two directors who represent the trades and suppliers who typically perform as subcontractors; (c) one director who is a representative of an educational institution that provides construction management training or education; (d) one director who has expertise with surety bonding; (e) one director who is a member of the Manitoba Association of Architects; (f) one director who is a member of The Association of Professional Engineers and Geoscientists of the Province of Manitoba; (g) no more than two directors who represent private sector development or ownership; (h) no more than two directors who represent public sector development or ownership. 3. The board includes both urban and rural representation amongst its directors. 2(2) Before being designated, the entity must agree in writing to comply with any conditions of designation specified by the minister, including any conditions respecting the term or termination of the designation. 2(3) The minister may terminate the designation at the minister's discretion. 2(4) The designated entity must provide a copy of its by-laws to the minister upon request. 2(5) The designated entity must operate as the "Manitoba Prompt Payment Adjudication Authority". Additional duties and powers 3(1) In addition to the duties and powers provided for in the Prompt Payment Division and this regulation, the adjudication authority must (a) establish a process for persons to apply to be adjudicators; (b) develop procedures to ensure that the range of knowledge and working experience of the adjudicators is sufficient to address the nature of the matters in dispute and the industry sectors; (c) establish a process for making and dealing with complaints against adjudicators from parties involved in the adjudication process; (d) develop information materials about the adjudication process; (e) prepare an annual report; and (f) create a website accessible to the public. 3(2) Before section 80 of the Prompt Payment Division comes into force, the adjudication authority must (a) appoint up to five persons as adjudicators who meet the requirements for registration as adjudicators in section 10; and (b) provide advice to the minister regarding whether fees in respect of adjudications and fees for the training and assessment of adjudicators ought to be set by regulation. Training program 4(1) For the purpose of clause 104(3)⁠(a) of the Prompt Payment Division, the adjudication authority must ensure that a training program is provided to (a) persons who apply to be an adjudicator; and (b) adjudicators on a continuing basis. 4(2) The training program must include the following matters: (a) The Builders' Liens Act , The Interpretation Act and any other legislation that the adjudication authority considers relevant to the construction industry in Manitoba; (b) the process for conducting an adjudication in an inquisitorial manner. 4(3) Clause (1)⁠(a) does not apply to the persons appointed as adjudicators under clause 3(2)⁠(a). M.R. 27/2025 Code of conduct 5(1) The adjudication authority must establish and maintain a code of conduct for adjudicators. 5(2) The code of conduct must address the following matters: (a) conflict of interest; (b) the principle of proportionality in the conduct of an adjudication and the need to avoid excess expense; (c) the principles of civility, competence and integrity in the conduct of an adjudication; (d) the confidentiality of information disclosed in relation to an adjudication. Adjudicator registry 6(1) For the purpose of clause 104(3)⁠(c) of the Prompt Payment Division, the adjudicator registry must include the following for each adjudicator: (a) the name and contact information of the adjudicator; (b) the period of validity of the adjudicator's qualification certificate; (c) the adjudicator's area or areas of expertise for the purpose of the adjudication; (d) the number of years of relevant working experience in the construction industry; (e) every professional body in which the adjudicator is a member in good standing; (f) the geographical area or areas in which the adjudicator conducts adjudications; (g) any other information that the minister directs to be included in the registry for the purpose of assisting parties in selecting an adjudicator. 6(2) The adjudication authority must establish and maintain procedures for ensuring the accuracy and completeness of information in the adjudicator registry. Annual report 7(1) The adjudication authority must prepare an annual report for its fiscal year containing information about the adjudications, including (a) the total number of adjudications completed during the fiscal year; (b) the total number of adjudications completed during the fiscal year set out by each matter that may be referred to adjudication under subsection 103(1) of the Prompt Payment Division; (c) the total amount and the average amount claimed in the notices of adjudication given during the fiscal year; (d) the total amount and the average amount required to be paid under determinations made during the fiscal year; (e) the total number of adjudications completed during the fiscal year by the 30-day time period referred to in subsection 115(1) of the Prompt Payment Division; (f) the total number of adjudications completed during the fiscal year by an extended time period as permitted by section 116 of the Prompt Payment Division; (g) the total number of terminated adjudications during the fiscal year; (h) the total amount of fees, costs or other charges paid to the adjudication authority during the fiscal year; and (i) the total amount of fees paid to adjudicators during the fiscal year. 7(2) The information provided under clauses (1)⁠(a), (c) and (d) must be reported for Manitoba as a whole and for each of the industry sectors. 7(3) The adjudication authority must collect from the adjudicators, and the adjudicators must provide, such information as may be reasonably required to meet the annual reporting requirement. 7(4) The annual report must be provided to the minister and published on the adjudication authority's website within three months after the end of the fiscal year to which it relates. Information available to the public 8 The adjudication authority must make the following available to the public on the adjudication authority's website: (a) the adjudicator registry; (b) the current code of conduct; (c) each previous version of the code of conduct and the period within which it applied; (d) the process for persons to apply to be adjudicators; (e) information about the adjudication process; (f) the process for making and dealing with complaints against adjudicators from parties involved in the adjudication process; (g) the process for the making of complaints against the adjudicating authority; (h) each annual report. Complaints 9 A complaint against the adjudication authority may be made in writing to the Director of the Consumer Protection Office. ADJUDICATORS Requirements for registration as adjudicator 10(1) A person is eligible to be registered as an adjudicator if the person applies to the adjudication authority in accordance with the application process and meets the following requirements: 1. The person has, in the adjudication authority's opinion, at least 10 years of relevant working experience in the construction industry. 2. The person has successfully completed the training program. 3. The person is not an undischarged bankrupt. 4. The person has not been convicted of an indictable offence in Canada or a comparable offence outside Canada. 5. The person pays to the adjudication authority the required fees that may be charged for training and assessment as an adjudicator. 6. The person agrees in writing to comply with the Act, this regulation and the code of conduct. 10(2) Subject to this section, the adjudication authority may register as an adjudicator a person who meets the eligibility requirements. 10(2.1) Until March 31, 2026, the adjudication authority may waive the requirement in item 2 of subsection (1) if the adjudication authority is satisfied that the person has the experience or education to conduct adjudications. 10(3) In deciding whether to register a person who meets the eligibility requirements as an adjudicator, the adjudication authority must take reasonable steps to ensure that (a) the range of knowledge and working experience of the adjudicators is sufficient to address the nature of the matters in dispute and the industry sectors; and (b) the total number of adjudicators available for adjudication is commensurate with the number of adjudications and the nature of the matters in dispute reasonably expected to take place each year in Manitoba. 10(4) A person who meets the eligibility requirements is not entitled to be registered as an adjudicator. M.R. 27/2025 Qualification certificate 11(1) The adjudication authority must issue a qualification certificate to a person upon registration as an adjudicator that states the name of the person and the period of validity. 11(2) A qualification certificate is valid for the period specified by the adjudication authority. But the adjudication authority may renew the certificate for one or more periods if the holder continues to meet the eligibility requirements. M.R. 27/2025 Requirements for adjudicators 12 Every adjudicator must (a) comply with the Act, this regulation and the code of conduct; (b) successfully complete the training program on a continuing basis; (c) pay to the adjudication authority the required fees, costs, or charges for training and assessment as an adjudicator; (d) maintain the records required by the adjudication authority and report information about those records to the adjudication authority on its request; (e) immediately notify the adjudication authority in writing if the adjudicator ceases to meet the eligibility requirements; and (f) on the adjudication authority's request and in the time and manner specified by the adjudication authority, provide proof of the adjudicator's eligibility. M.R. 27/2025 Suspension and cancellation of qualification certificate 12.1(1) The adjudication authority may suspend or cancel a qualification certificate if the adjudication authority is reasonably satisfied that one or more of the following apply: (a) the adjudicator has ceased to be eligible to hold the qualification certificate or has failed to comply with section 12; (b) the adjudicator is incompetent or unsuitable to conduct adjudications; (c) the qualification certificate was issued or renewed on the basis of a false or misleading representation or declaration. 12.1(2) The adjudication authority may lift the suspension or re-issue the cancelled qualification certificate if the authority is reasonably satisfied that the circumstances giving rise to the suspension or cancellation no longer exist and the adjudicator meets the eligibility requirements. 12.1(3) The adjudicator whose qualification certificate is suspended or cancelled ceases, for the duration of the suspension or cancellation, to be authorized to conduct adjudications or to continue to conduct any ongoing adjudications. 12.1(4) Upon the suspension of the qualification certificate, the adjudication authority must make a notation "SUSPENDED" beside the adjudicator's name in the adjudicator registry. The notation must appear for the duration of the suspension. 12.1(5) Upon the cancellation of the qualification certificate, the adjudication authority must remove the adjudicator's name from the adjudicator registry. M.R. 27/2025 ADJUDICATION Province-wide availability 13 The adjudication authority must develop procedures and take other reasonable steps to ensure that adjudication is available to parties throughout Manitoba. Administrative support 14 The adjudication authority may provide administrative support services for the purpose of facilitating the conduct of adjudications. Conducting the adjudication 15 For the purpose of subsection 113(3) of the Prompt Payment Division, the adjudicator must, to the greatest extent possible, conduct the adjudication in an inquisitorial manner, assessing facts the adjudicator determines are relevant and necessary to enable the adjudicator to make a determination. Copy of notice to adjudication authority 15.1 A party to a contract or sub-contract who gives a notice of adjudication under section 106 of the Act must, on the same day, give a copy of the notice in electronic format to the adjudication authority. M.R. 27/2025 Response to adjudication notice 15.2 A party responding to a notice of adjudication must give copies of the response to the adjudicator and the other party (a) on the same day, which must be no later than the date specified by the adjudicator; and (b) in a manner set out in section 1.2 unless the adjudicator directs otherwise. M.R. 27/2025 Consolidation of adjudications 15.3(1) For the purpose of subsection 107(1) of the Act, the parties to separate adjudications on the same or related matters under the same contract or sub-contract who agree to consolidate the adjudications must give a written request to the contractor to give a notice of consolidation as set out in subsection (4). 15.3(2) For the purpose of subsection 107(2) of the Act, a contractor who wishes to require the consolidation of separate adjudications (even if the parties to the adjudications do not agree) must give a notice of consolidation as set out in subsection (4). 15.3(3) The notice of consolidation must include (a) for each separate adjudication, (i) the name and address of each party, (ii) a copy of the notice of adjudication, (iii) the name and contact information of the adjudicator, and (iv) the date, if applicable, when the adjudicator received the documents as required by section 112 of the Act; (b) a copy of the parties' written request to the contractor for consolidation, if applicable; and (c) the name of the proposed adjudicator selected in accordance with this section by the parties or the contractor to conduct the consolidated adjudication, if any. 15.3(4) If the contractor agrees with the request for the consolidation under subsection (1) or wishes to consolidate adjudications under subsection (2), the notice of consolidation must be given by the contractor to (a) the adjudicator for each separate adjudication; (b) the proposed adjudicator for the consolidated adjudication, if any; and (c) every party to each separate adjudication. On the same day, the contractor must also give a copy of the notice in electronic format to the adjudication authority. 15.3(5) The notice of consolidation must not be given later than five days after the day an adjudicator of a separate adjudication receives the documents required by section 112 of the Act. 15.3(6) A party responding to the notice of consolidation must give copies of their response to the adjudicator and every other party on the same day and in a manner set out in section 1.2. 15.3(7) The adjudicator of an adjudication that is subsequently consolidated is deemed to have resigned on the day on which the adjudicator received the notice of consolidation. 15.3(8) Subject to the requirements of section 110 of the Act, an adjudicator who is deemed to have resigned may be selected by the parties or the contractor or appointed by the adjudication authority to conduct the consolidated adjudication. 15.3(9) For the purpose of the consolidated adjudication, (a) if the proposed adjudicator does not consent to act within four days after the day the notice of consolidation is received, the contractor must request that the adjudication authority appoint an adjudicator; and (b) the adjudication authority must appoint an adjudicator who consents to the appointment as the adjudicator for the consolidated adjudication within seven days after receiving the contractor's request under clause (a). M.R. 27/2025 Giving required documents 15.4(1) The documents required to be given to an adjudicator or a party under section 112 of the Act must be given in a manner set out in section 1.2 unless the adjudicator directs otherwise (a) to the adjudicator together with a copy of the notice of adjudication; and (b) to the other party on the same day as they are given to the adjudicator. 15.4(2) As soon as possible after receiving all the documents required to be given, the adjudicator must provide written confirmation to the parties of the date on which the documents were received. M.R. 27/2025 Sharing other documents 15.5(1) An adjudicator may issue directions about the timely sharing of documents on which a party intends to rely in an adjudication. 15.5(2) The adjudicator must exercise the power to issue directions to ensure that each party to the adjudication has an opportunity to review any documents on which a party to the adjudication intends to rely. M.R. 27/2025 Exercising powers 15.6 An adjudicator may exercise a power under section 113 of the Act and this regulation despite any failure of a party to the adjudication to comply with a direction or other requirement of the adjudicator. M.R. 27/2025 Determination 15.7(1) An adjudicator who makes a determination must (a) communicate the determination to the parties to the adjudication by giving each of them an electronic copy of the determination on the day it is made; and (b) give a certified copy of the determination to the parties to the adjudication no later than seven days after the day the determination is made. 15.7(2) The adjudicator may, on the written request of a party or on the adjudicator's own initiative, make such changes to the determination during the seven-day period as may be necessary to correct an error that is of a typographical or similar nature. 15.7(3) If the adjudicator changes the determination, the adjudicator must give to the parties (a) an electronic copy of the corrected determination on the day the change is made; and (b) a certified copy of the corrected determination no later than five days after the day the change is made. M.R. 27/2025 Adjudicator unable to conduct adjudication 15.8(1) At any time, an adjudicator may resign from an adjudication if the adjudicator determines that (a) the matter is not permitted to be referred for adjudication under subsection 103(1) of the Act; or (b) the adjudicator is not able or competent to conduct the adjudication. 15.8(2) The adjudicator must promptly give written notice of the resignation to the parties. M.R. 27/2025 Failure of adjudicator to complete adjudication 15.9(1) If an adjudicator fails to complete an adjudication, the party who gave the notice of adjudication may give to the other party a new notice of adjudication under section 106 of the Act. 15.9(2) If an adjudicator of a consolidated adjudication fails to complete the adjudication, the contractor who gave the notice of consolidation may give the parties a new notice of consolidation under section 15.3. 15.9(3) When the new notice of adjudication or notice of consolidation is given, the parties must, if requested by the adjudicator in the new adjudication and to the extent that it is reasonably practicable to do so, provide to the adjudicator copies of any documents that they made available to the adjudicator in the incomplete adjudication. 15.9(4) If the adjudicator fails to complete an adjudication other than in the circumstances outlined in subsection 119(2) of the Act, the adjudicator's entitlement to be paid a fee under section 111 of the Act and the amount of the fee must be determined (a) by agreement between the parties to the adjudication and the adjudicator; or (b) if no agreement is reached, by the adjudication authority on the adjudicator's request. 15.9(5) In determining the amount of the fee under clause (4)⁠(b), the adjudication authority must determine an amount that is, in its view, appropriate given the work completed by the adjudicator and the circumstances in which the adjudicator failed to complete the adjudication. 15.9(6) For the purpose of clause (4)⁠(b), a party to the adjudication must provide to the adjudication authority, on its request, any information in the party's possession relating to the adjudication that is reasonably required by the adjudication authority to assist it in making a determination under that clause. 15.9(7) Subsections (4), (5) and (6) apply to the entitlement to the fee and the determination of the amount of the fee for an adjudicator who is deemed to have resigned from the adjudication under subsection 15.3(7). M.R. 27/2025 COMING INTO FORCE Coming into force 16 This regulation comes into force on the same day that section 104 of the Prompt Payment Division, as enacted by section 13 of The Builders' Liens Amendment Act (Prompt Payment) , S.M. 2023, c. 30, comes into force. SCHEDULE Forms 1(1) The following forms are to be used for the purpose of the Act and this regulation: Form 1 — Notice of Non-Payment by Owner to Contractor (s. 90(2) and (3) of the Act) Form 2 — Contractor's Notice of Non-Payment by Owner (s. 93(2) and (3) of the Act) Form 3 — Notice of Non-Payment By Disputing Contractor (s. 95(1) and (2) of the Act) Form 4 — Payor Sub-contractor's Notice of Non-Payment by Contractor or Applicable Sub-contractor (s. 98(2) and (3) or s. 101 of the Act) Form 5 — Notice of Non-Payment By Disputing Payor Sub-contractor (s. 100(1) and (2) or s. 101(2) of the Act) Form 6 — Notice of Adjudication (s. 106(1) of the Act) Form 7 — Request to Contractor for Consolidation (s. 15.3(1) of the regulation) Form 8 — Notice of Consolidation (s. 15.3(3) of the regulation) 1(2) For forms 7 and 8, the text displayed by double-clicking the link "Double click for instructions" reads as follows: Insert the following information: 1. Name and address of the party 2. Name and contact information of the adjudicator 3. Date when adjudicator received the documents as required by section 112 of the Prompt Payment Division, if applicable Add more parties as required. M.R. 27/2025