You can run, you can hide but you can’t escape the Construction Act.

Sometimes a construction contract has terms that attempt to remove requirements and remedies available under the Construction Act. For example, the contract states that a party cannot lien or a party has to pay the full amount of an invoice without the statutory 10% holdback. Those terms are not enforceable as parties cannot contract out of their obligations under the Construction Act.

Section 4 of the Construction Act states that any agreement related to the supply of services or materials to an improvement that states that the Construction Act or the remedies provided by it are not available is void. This means if your contract states that the Construction Act does not apply, it probably isn’t enforceable.

Section 5 of the Construction Act states that a contract or subcontract will be amended as necessary to be in conformity with the Construction Act. So, if your contract includes terms that are less favourable than the Construction Act, those terms may be overridden by the Construction Act. For example, if a contract states that an owner only must pay a proper invoice within 60 calendar days, the contract will be amended to state that the payment will have to be made in 28 calendar days to comply with the Construction Act. =

Check your contract against the Construction Act!